Making headlines across the country tonight, the 9th Circuit Court of Appeals upheld the lower federal district court's order, issued last week, blocking President Trump's controversial immigration executive order, commonly referred to as the "Muslim ban," from taking effect nationwide. The Ninth Circuit Court of Appeals, in a rare unanimous per curium decision, repeatedly explained that the federal government's arguments were untenable.
The lower court put a stop to the executive order, which allowed immigrants, and lawful permanent residents, who were being denied entry under the order, to enter the country. The Ninth Circuit's ruling essentially means that those who would have been affected by the executive order but for the lower court's ruling, will still not be affected by it. However, it should be noted that all of these orders are preliminary, and will only be in place until a final resolution is reached as to the constitutional challenges to the executive order, which could take years if it is allowed to continue.
Courts Can Review Executive Orders
Among the principle arguments put forward by the federal government in favor of overturning the federal district court holding to block the order was that the court does not have legal, constitutional authority to review an executive order, in particular, when it deals with national security, immigration, or foreign policy. The Ninth Circuit spent several pages explaining that this argument was incorrect. The federal courts are explicitly vested with the power to review both executive and congressional policies, laws and regulations.
While it may not sound harsh to non-lawyers, the court had some strong words about the federal case:
- "There is no precedent to support this claimed unreviewability."
- "The Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority."
- "It is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."
Court Resists Feds
In addition to the arguments claiming the court lacks authority, the feds claimed that the order should be limited to the two states that petitioned the court, and that it is a matter of national security. However, the court was not swayed by either of these arguments. It not only refused to geographically limit the lower court's order blocking the EO, but also held fast to the same point the lower court found compelling: none of the countries listed in the EO were connected to known terror attacks in the US.
Here is the Ninth Circuit's order in full: