Federal Court Upholds Suspension On Travel Ban

On February 9^th, a federal appeals court in San Francisco unanimously upheld a suspension of President Trump’s executive order barring all refugees from entering the U.S. and restricting travel from seven Muslim-majority countries. In the unanimous decision, a three-judge panel on the 9th Circuit Court of Appeals ruled courts have the authority to review constitutional challenges to executive actions.

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.  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 around the country.

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 panel declined to block a lower-court ruling that suspended the ban and allowed previously barred travelers to enter the U.S.  The judges rejected the administration’s argument that courts did not have the authority to review the president’s immigration and national security decisions. They also said the administration failed to show that the order met constitutional requirements to provide notice or a hearing before restricting travel and presented no evidence that any foreigner from the seven countries cited by the travel ban had committed terrorism in the U.S.

This controversial court battle has just begun. Now, the lower court  must debate the merits of the ban, and an appeal to the U.S. Supreme Court seems likely.  When that happens, it could put the decision in the hands of a divided court that has a vacancy. A potential 4-4 tie would leave the appeals court’s ruling in place.

The appeals court only sided with the administration on one issue: 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.

Trump’s nominee, Neil Gorsuch, could not be confirmed in time to take part in any consideration of the ban.  President Trump responded to the ruling on Twitter, tweeting “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”  The ban was set to expire in 90 days, meaning it could run its course before the Supreme Court would review the issue.