The U.S. 4th Circuit Court of Appeals has refused to reinstate President Trump’s second attempt at a travel ban on all refugees and citizens of six majority-Muslim nations from entering the United States. The Justice Department has vowed to challenge the appeals court ruling and take it to the Supreme Court.
The court ruled 10-3 to uphold a ruling from a district court judge in Maryland that blocked a portion of the order that temporarily banned travel to the United States by nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. In the majority decision, Chief Judge Roger Gregory wrote that Trump’s executive order uses “vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
Judge Gregory listed televised interviews and numerous statements made at political rallies that, in the court’s view, indicated the true intentions of the order. He cited a rally statement in which Trump called the second order a “watered down version” of the first order as well as a televised interview with Rudy Giuliani who said that Trump had asked him to devise an immigration ban within the bounds of legality.
The judge wrote that a reasonable observer would likely conclude the order’s “primary purpose is to exclude persons from the United States on the basis of their religious beliefs”. The government argued that Trump’s comments on the campaign trail should not be taken into account since they occurred before he took office on Jan 20. The appeals court rejected that view, saying they provide a window into the motivations for Trump’s action in government.
The appeals court questioned a government argument that the president has wide authority to halt the entry of people to the United States. They were reviewing a March ruling by Maryland-based federal judge Theodore Chuang that blocked part of Trump’s March 6 executive order barring people from Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days while the government put in place stricter visa screening. A similar ruling against Trump’s policy from a Hawaii-based federal judge is still in place. The Hawaii judge’s ruling also blocked a section of the travel ban that also suspended refugee admissions for four months. The San Francisco-based 9th US Circuit Court of Appeals is still reviewing that decision.
The Trump administration has argued that the temporary travel ban is a national security measure aimed at preventing Islamist militant attacks. “That’s why it’s not a Muslim ban”. The countries were not chosen because they are predominantly Muslim but because they present terrorism risks, the administration has said.
After the 4th Circuit Court ruling, Attorney-general Jeff Sessions said in a statement that the government would seek a review of the case at the Supreme Court. White House spokesperson Michael Short said “These clearly are very dangerous times and we need every available tool at our disposal to prevent terrorists from entering the United States and committing acts of bloodshed and violence,” adding that the White House was confident the order would ultimately be upheld by the judiciary.
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On February 9th, 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.
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President Trump has imposed a controversial 90-day ban on travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. On January 27th, Trump signed the order banning travel from the seven Muslim-majority countries for 90 days and suspending all refugee admission for 120 days. Homeland Security Secretary John Kelly and Department of Homeland Security (DHS) leadership saw the final details shortly before the order was finalized.
The result was widespread confusion across the country on Saturday as airports struggled to adjust to the new directives. Stories of families separated or detained for hours starting circulating news outlets.The policy team at the White House developed the executive order on refugees and visas and avoided the traditional inter-agency process that allowed the Justice Department and homeland security agencies to provide operational guidance.
DHS arrived at the legal interpretation that the executive order restrictions did not apply to people with lawful permanent residence, referred to as green card holders. The White House overruled that guidance overnight and decided that on a case by case basis, DHS could allow green card holders to enter the US. The Department of Homeland Security decided that green card holders would be allowed to board international flights but would be considered on a case-by-case basis after passing a secondary screening.
Acting Attorney General Sally Yates announced the Justice Department would not defend Trump’s executive order temporarily banning all refugees, as well as all citizens, from the seven Muslim-majority nations. Just hours after her announcement, President Trump fired her. Yates had served in the Justice Department for 27 years and Trump had asked her to serve as acting attorney general until the Senate confirmed Sen. Jeff Sessions.
Yates is not the only one to publicly disagree with the executive order. More than 200 State Department officials and diplomats have signed on to drafts of a dissent memo that condemns Trump’s executive order. Executives at a growing number of corporations have spoken out against Trump’s immigration ban, including Google, Apple, Microsoft, Amazon, Facebook, Netflix, Tesla, Airbnb, Ford and Goldman Sachs. World-wide protests has erupted across the globe as well.
Then, Federal Judge James Robart, who presides in Seattle, halted the enforcement of Trump’s order Friday night, effective nationwide. Ruling in a lawsuit brought by the attorneys general of Washington state and Minnesota who sought to stop the order, he said the states “have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. ” He said the order adversely affects residents in areas of education, employment, education and freedom to travel.
The Department of Homeland Security announced it has suspended all actions to implement the immigration order and will resume standard inspections of travelers as it did prior to the signing of the travel ban. They said the Justice Department — which is expected to file an emergency motion to stop the order — needed to challenge the ruling “at the earliest possible time.”
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