BREAKING NEWS Federal appeals court refuses to reinstate Trump travel ban
Federal appeals court refuses to reinstate Trump travel ban
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© Cliff Grassmick/Daily Camera via AP Allie Morgan, a University of Colorado graduate student, is among dozens of people at a travel ban protest at the University of Colorado in Boulder on Thursday, Feb. 9, 2017. SAN FRANCISCO — A federal appeals court refused Thursday to reinstate President Donald Trump's ban on travelers from seven predominantly Muslim nations, unanimously rejecting the administration's claim of presidential authority and questioning its motives.
The panel of three judges from the San Francisco-based 9th U.S. Circuit Court of Appeals declined to block a lower-court ruling that suspended the ban and allowed previously barred travelers to enter the U.S.
The court battle is far from over. The lower court still must debate the merits of the ban, and an appeal to the U.S. Supreme Court seems likely. That could put the decision in the hands of a divided court that has a vacancy. Trump's nominee, Neil Gorsuch, could not be confirmed in time to take part in any consideration of the ban.
Moments after the ruling was released, Trump tweeted, "SEE YOU IN COURT," adding that "THE SECURITY OF OUR NATION IS AT STAKE!"
In response, Washington Gov. Jay Inslee, a Democrat who leads one of the states that challenged the ban, said: "Mr. President, we just saw you in court, and we beat you."
The appeals panel said the government presented no evidence to explain the urgent need for the executive order to take effect immediately. The judges noted compelling public interests on both sides.
"On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination."
The court rejected the administration's claim that it did not have the authority to review the president's executive order.
"There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," the court said.
While they did not rule on the actual merits of the states' argument that the travel ban was intended to target Muslims, the judges rejected the government's claim that the court should not consider statements by Trump or his advisers about wishing to enact such a ban. Considering those remarks, the judges said, falls within well-established legal precedent.
The Justice Department said that it was "reviewing the decision and considering its options." It's the first day on the job for new Attorney General Jeff Sessions, who was sworn in at the White House earlier Thursday by Vice President Mike Pence.
Last week, U.S. District Judge James Robart in Seattle issued a temporary restraining order halting the ban after Washington state and Minnesota sued. The ban temporarily suspended the nation's refugee program and immigration from countries that have raised terrorism concerns.
Justice Department lawyers appealed to the 9th Circuit, arguing that the president has the constitutional power to restrict entry to the United States and that the courts cannot second-guess his determination that such a step was needed to prevent terrorism.
The states said Trump's travel ban harmed individuals, businesses and universities. Citing Trump's campaign promise to stop Muslims from entering the U.S., they said the ban unconstitutionally blocked entry to people based on religion.
The appeals court sided with the states on every issue save one: the argument that the lower court's temporary restraining order could not be appealed. While under 9th Circuit precedent such orders are not typically reviewable, the panel ruled that due to the intense public interest at stake and the uncertainty of how long it would take to obtain a further ruling from the lower court, it was appropriate to consider the federal government's appeal.
Josh Blackman, a professor at South Texas College of Law in Houston, said the "million-dollar question" is whether the Trump administration would appeal to the Supreme Court.
That could run the risk of having only eight justices to hear the case, which could produce a tie and leave the lower-court ruling in place.
"There's a distinct risk in moving this too quickly," Blackman said. "But we're not in a normal time, and Donald Trump is very rash. He may trump, pardon the figure of speech, the normal rule."
Jessica Levinson, a professor at Loyola Law School, said the ruling was thoughtful and supported by a great deal of legal precedent. More important, though, it was unanimous despite the having judges who were appointed by Democratic and Republican presidents.
"It's a very important message that judges are not just politicians in robes and not just political hacks," Levinson said. "The role of the judge is to transcend politics. That's why they're appointed for life, so they don't worry about what's popular. They worry about what's legally correct."
Both sides faced tough questioning during an hour of arguments Tuesday. The judges hammered away at the administration's claim that the ban was motivated by terrorism fears, but they also challenged the states' argument that it targeted Muslims.
"I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected," Judge Richard Clifton, a George W. Bush nominee, asked an attorney representing Washington state and Minnesota.
Only 15 percent of the world's Muslims are affected by the executive order, the judge said, citing his own calculations.
"Has the government pointed to any evidence connecting these countries to terrorism?" Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked the Justice Department attorney.
After the ban was put on hold, the State Department quickly said people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — with valid visas could travel to the U.S. The decision led to tearful reunions at airports round the country.
The ban was set to expire in 90 days, meaning it could run its course before the Supreme Court would take up the issue.
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There are three equal branches of government, not one.
Why is Donald Trump trying to scare the crap out of everyone, and make everyone think their lives are in constant danger from terrorism or street crime?
What is the extreme rush to ban travel from these 7 countries?
Something stinks to high heaven in this country right now. The people need to wake up and be vigilant.
The people need to wake up and be vigilant.
Hey that's the same thing Trump is saying.
I say avoid the liberal cesspools and you'll be fine.
I say avoid the liberal cesspools and you'll be fine.
I say, the actual snowflakes are about to become a blizzard!
I think Trump made a very big mistake in having insulted and attacked the brethren of the judiciary if he expected them to have any respect for him.
"Trump's nominee, Neil Gorsuch, could not be confirmed in time to take part in any consideration of the ban."
Judging from what Gorsuch indicated about the ban already, I think he would have ruled against Trump in any event had he been sitting as an Associate Justice of the SCOTUS.
If he's confirmed a supreme in the next few days this case may come before him. I wonder if he would recuse himself.
Surely he would have to recuse himself, he has already pre-judged the issue.
Yep, and they're equal for a reason.
Today's decision appears to mean it would be months, at least before the ban could be reinstated.
"The 9 th Circuit’s decision ensures the immigration ban will not be implemented while the judiciary considers the merits of the legal challenge—that is, unless the Supreme Court lifts the injunction. Although the Justice Department is expected to appeal, the high court’s current ideological divide means it is unlikely to reverse the 9 th Circuit’s determination. For now at least, it appears the legal arguments against the ban have carried the day."
BREAKING: Supreme Court litigator Chuck Cooper abruptly withdrew his name from consideration as President Trump's solicitor general, the person who represents the federal government in Supreme Court cases.
That's good Cooper wasn't a very good choice.
Cooper is likely embarrassed to see his name mentioned in the same sentence with President* Trump.
As I see it Trump/administration have a number of options. Let it go to SCOTUS, rewrite the EO, or wait for other decisions. There are a number of lawsuits in the pipeline now.
There is 4 choices as I see it the Admin has ,
1. accept the ruling
2. appeal , en Banc to the entire 9th so all the judges of the circuit will have to make a ruling .
3. take it to the USSC.
4. recind the EO and rewrite and reissue a differently worded EO that does the same thing basically without the offensive language that is triggering some folks.
I know what the obvious one is to me , the last one , but no one said we live in obvious times , so again , time to sit back and wait and watch, and see what happens.
All this decision does is uphold a TEMPORARY RESTRAINING ORDER. And the case goes back to Seattle for further trial work.
the governments options are
1. Accept the ruling, and finish the action in court, probably the proper thing to do in light of the basis for the decision.
2. Appeal , en Banc to the entire 9th Circuit so all the judges of the will have to make a combined ruling ON LIFTING A TEMPORARY RESTRAINING ORDER. Which will probably result in the exact same decision.
3. Take it to the 4-4 United States Supreme Court. Which will not have his appointee on it even if he is confirmed. The case on a temporary restraining order would have to receive a Grant of certiorari status before the confirmation which means he is ineligible to hear it. Beside this is unlikely. The supreme Court only hears cases that have issues that directly effectuate or are effected by a constitutional decision, and is perfected which this case isn't. and in almost ALL cases like this where it is only the action of well established law at issue the Supreme Court has usually refused to issue a writ of certiorari.
The case needs to go back to Seattle for trial, THAT is what the 9th Circuit panel decided today. The state of Washington didn't win anything like the State AG (and pretty much everyone else left of me) is claiming.
The reasons the court panel gave for upholding the temporary restraining order is that the government has not shown a compelling reason to lift the order. Which I agree with.
There actually wasn't a compelling legal reason to have issued it in the first place. and when they did issue it, their implementation was very uneven and unfair, actually being unjust in some cases.
As far as the States case, which was based upon the financial hit the state will take from the execution of the order wasn't really addressed by the court. Before the court can get to that issue it is incumbent on the feds to prove the necessity of the order in the first place. Which they didn't even begin to meet.
And in this set of circumstances that is next to impossible.
The only issue before the court was the issue of lifting the temporary restraining order, which based upon legal insufficiency, the panel refused to do.
They have the cart before the horse legally.
Go have the trial.
And we will get back to you.