When Donald Trump issued an executive order banning entry into the United States of individuals from seven Muslim-majority countries, the legal response was immediate. Lawsuits in New York, Virginia, and Boston won temporary stays against enforcement of the order, and a suit from the Washington State resulted in a nationwide temporary restraining order blocking the travel ban from going into effect.
Trump's lawyers appealed that decision, asking that the government be allowed to enforce the executive order while the legal cases played out in court. But in a unanimous decision yesterday, the U.S. Ninth Circuit Court of Appeals issued yet another ruling against Trump's travel ban, upholding the prohibition on enforcement.
Check This, Balance That
One of the central arguments government attorneys made in their appeal was that the courts lacked the authority to even review the president's executive order. They cited the executive branch's broad powers when it comes to immigration enforcement and matters of national security, and contended that the judicial branch should step aside, even if there were constitutional challenges to Trump's executive order.
But the Ninth Circuit was not persuaded: "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."
Once the court decided it could review the executive order, it was also skeptical that the order or its enforcement was even necessary:
Despite the district court's and our own repeated invitations to explain the urgent need for the executive order to be placed immediately into effect, the government submitted no evidence to rebut the states' argument that the district court's order merely returned the nation temporarily to the position it has occupied for many previous years. 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.
Therefore, the order blocking Trump's travel ban will remain in effect, at least for the meantime, while the court cases go forward.
Did the Court Find Religious Discrimination?
The question of possible religious discrimination remains unsettled, as the Ninth Circuit declined to address the question. In the words of the appeals court:
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.
See You in Court
President Trump was obviously displeased with the Ninth Circuit's decision, immediately tweeting, "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" (Emphasis in original.) It was an odd challenge, considering it's the courts where Trump's immigration order has consistently lost.
The court to which he presumably refers would be the Supreme Court, which could review the Ninth Circuit's decision and has been more deferential to presidential authority in the past. But with only eight justices currently on the bench, the Court could split four to four on the matter, in which case the ruling barring Trump's travel ban would remain in effect indefinitely.
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