The 9th Circuit Court of Appeals announced Thursday that it will not reinstate President Donald Trump’s 90-day ban on immigrants traveling to the United States.
The Trump administration was seeking a stay (the lifting) of a temporary restraining order that halted the order that banned immigrants from seven Muslim-majority countries from entering the United States.
What happens now that the ruling by judges Michelle Friedland, William Canby and Richard Clifton has been issued?
On Friday, the states of Washington and Minnesota asked for a temporary restraining order that would halt, among other immigration actions, the 90-day ban on travel from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
The states asked in their motion that the travel ban be halted because it harmed individuals, businesses and universities in their states. They also claimed that the ban was based on religion and was, in essence, a ban on Muslims entering the country.
On Saturday, Judge James Robart granted the request from the states, and issued a temporary restraining order (TRO) that blocked the travel ban.
On Sunday, the administration appealed the TRO and asked the 9th Circuit Court of Appeals to hear arguments and uphold its assertion that the president has the constitutional power to restrict entry to the country.
On Tuesday, the Justice Department argued before a panel of the 9th Circuit that it is within the president’s powers to decide who should be allowed to enter the country. They also argued that the two states did not have “standing” to bring such a suit. To have standing means that a person, or in this case a state, has a personal stake in the outcome of a trial – that they have or will be sufficiently affected by the other's actions.
What does the ruling mean?
In short, the travel ban remains suspended nationwide. The ruling was not the end of the legal arguments over the ban. It simply means that government lawyers failed to convince the three-judge panel of the 9th Circuit Court of Appeals that it should be reinstated.
The 9th circuit’s ruling applies only to the question of whether or not the earlier ruling by district judge James Robart, in Seattle, was correct.
What did the ruling say?
In Thursday’s ruling:
1. The judges rejected the administration's argument that courts did not have the authority to review the president's immigration and national security decisions
“In short, although courts owe considerable deference to the president’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
2. They told the administration it presented no evidence that any foreigner from the seven countries on the banned list was responsible for a terrorist attack in the United States
“Although we agree that ‘the government’s interest in combating terrorism is an urgent objective of the highest order’ … the government has done little more than reiterate that fact …
The government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”
3. They said they did not see “an urgent need” for the ban to be reinstated:
“Although the government points to the fact that congress and the executive identified the seven countries named in the executive order as countries of concern in 2015 and 2016, the government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the executive order to be immediately reinstated.”
4. They took Washington and Minnesota’s side on every issue except for one – that the appeals court was not the right forum to hear the government’s argument that the TRO should be lifted.
“While under ninth 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.”
5. The made no finding on claims by the states of Washington and Minnesota that it was a Muslim ban, based on religious discrimination. But the judges said future hearings could take into account statements made by Trump during the campaign in which he had said he would impose such a ban.”
“The states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the executive order was intended to be that ban …
The states’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.”
What happens next?
Thursday’s ruling does not end all litigation over the executive order. Instead, it says the government cannot enforce the order as the legal battle over the ban moves forward.
The suit brought by Washington and Minnesota continues in Robart’s court, where it was filed. The states asked the court to determine if the travel ban is constitutional.
In addition to the suit brought by Washington and Minnesota, there are around 20 other lawsuits filed against the ban in various states.
Will this case end up in the U.S. Supreme Court?
An appeal to the U.S. Supreme Court would seem likely, but that doesn’t mean the court would hear the case.
Even if it agrees to hear the case, there is still a vacancy on the court. With only eight members, four who typically lean conservative and four who lean more liberal, it may not matter if they do agree to hear it.
If the justices vote along conservative and liberal lines and end up with a 4-4 tie, the ruling from the 9th Circuit Court would remain in place.
In other words, there would not be a winning majority in the Supreme Court, so there would be no change in the ruling in the 9th Circuit court.
Could President Trump write a new order?
Yes, he could. In fact, in the ruling, the judges suggested that a less broad order that did not ban citizens from the seven majority-Muslim countries would have a better chance of surviving lawsuit challenges.
The judges pointed to the proposal by the administration’s counsel made after the order was issued that allowed travel by lawful permanent residents of the United States.
You can read a pdf of the court ruling here.