A federal appeals court panel has maintained the freeze on President Donald Trump’s controversial immigration order, meaning previously barred refugees and citizens from seven Muslim-majority countries can continue entering the United States.
In a unanimous, 29-page opinion, three judges with the U.S. Court of Appeals for the 9th Circuit flatly rejected the government’s argument that the suspension of the order should be lifted immediately for national security reasons and forcefully asserted their ability to serve as a check on the president’s power.
“The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches — an uncontroversial principle that is well-grounded in our jurisprudence,” the opinion says. “Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. … There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
The judges did not declare outright that the ban was meant to disfavor Muslims — essentially saying it was too early for them to render a judgment on that question. But their ruling is undeniably a blow to the government and means the ban will remain off for the forseeable future.
Trump reacted angrily on Twitter, posting just minutes after the ruling, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” The Justice Department, which was defending the administration’s position, said in a statement it was “reviewing the decision and considering its options.”
The Justice Department could now ask the Supreme Court — which often defers to the president on matters of immigration and national security — to intervene. The Supreme Court, though, remains one justice short, and many see it as ideologically split 4-4. A tie would keep in place the appeals court’s decision.
A Justice Department lawyer, representing the Trump administration, and Washington state’s solicitor general, representing the opposition, made their final pitches to the appeals court Tuesday at a contentious hearing. Both sides faced skeptical questioning, and the panel seemed particularly interested in what evidence Trump relied upon in implementing his order, and what limits the Justice Department saw on the president’s authority to set immigration policy.
Judge Michelle Taryn Friedland, who was appointed by President Barack Obama, asked a Justice Department lawyer if the government had “pointed to any evidence connecting these countries with terrorism.”
Judge Richard Clifton, a President George W. Bush appointee, noted that the government already had processes in place to screen people coming from those countries and asked, “Is there any reason for us to think that there’s a real risk or that circumstances have changed such that there’s a real risk?”
“The president determined that there was a real risk,” responded August Flentje, the Justice Department attorney.
Washington state Solicitor General Noah Purcell asserted that reinstating the ban would “throw the country back into chaos,” and he pleaded with the judges to maintain the status quo of the past several days. He asserted that Trump’s order was intentionally discriminatory, pointing to public statements from Trump and his allies as evidence.
Former New York Mayor Rudolph Giuliani, for example, recently said, “So when [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
On the campaign trail, Trump himself called for a “complete and total shutdown” of Muslims entering the U.S.
Federal immigration law undeniably gives the president broad authority to bar people from coming into the U.S., stating that if the president finds “the entry of any aliens” would be “detrimental” to the country’s interests, he can impose restrictions. But lawsuits across the country have alleged that Trump’s particular order ran afoul of the U.S. Constitution in that it intentionally disfavored Muslims.
Flentje did offer the judges a fallback option: They could, he said, limit Robart’s order so that it applied only to foreigners previously admitted to the country who were abroad now or those who wished to travel and return to the United States in the future. Purcell said the government had not demonstrated how they could practically implement such a solution.
Trump and his supporters have pressed the case that the short-term stoppage on refugees and immigrants from Iraq, Iran, Syria, Libya, Somalia, Sudan and Yemen is necessary for national security reasons. Trump went so far as to suggest on Twitter that if an attack were to happen, the judiciary was to blame. On Wednesday, he denounced arguments about his order as “disgraceful” and said “a bad high school student” would understand the broad authority the law gives him to impose immigration restrictions.
A day earlier, Homeland Security Secretary John Kelly told Congress he thought judges might be considering the issue from an “academic” perspective instead of the national security lens through which he views the world.
“Of course, in their courtrooms, they’re protected by people like me,” Kelly said.
Federal courts in New York, California and elsewhere already had blocked aspects of the ban from being implemented, although one federal judge in Massachusetts declared that he did not think that challengers had demonstrated that they had a high likelihood of success. The case before the 9th Circuit, though, was much broader than the others, because it stemmed from a federal judge’s outright halting of the ban. It was decided by Friedland, Clifton and Judge William Canby Jr., who was appointed by President Jimmy Carter.