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After Ninth Circuit’s Block on Trump Travel Ban, What’s Next?

By Sarah Kellogg

February 10, 2017

Trump signs executive order

Rebuffing the White House’s assertion of presidential authority, a three-judge federal appeals court panel extended on February 9 a nationwide temporary restraining order on President Trump’s travel ban on seven predominantly Muslim nations.

Many observers called the court’s decision a major defeat for the White House, but the U.S. Department of Justice is expected to appeal, either for an en banc hearing before the U.S. Circuit Court of Appeals for the Ninth Circuit or to the U.S. Supreme Court. Four justices would need to consent to hearing the case. The justices are ideologically split 4–4 at this point.

“What is good about the ruling is they had to justify their decision so there had to be a discussion, and it’s a meaty discussion,” says Elizabeth Quinn, an immigration lawyer with Maggio + Kattar. “It gives us a lot there for the next stages. It sheds light on their thought processes. This is not a brief order. It’s a substantial discussion in slapping down the government in quite a definitive way.”

In its ruling, the appeals court said the ban presented “significant constitutional questions.” The judges did agree that courts had the authority to review the presidential order, that there were legitimate Equal Protection concerns, and that the court could consider statements by Trump and his advisers about wishing to enact a faith-based ban in evaluating the constitutionality of the order.

“Nevertheless, we hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay,” noted the judges in their decision.

Shortly after the decision, the president was defiant in his response, posting on his personal Twitter account: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE.”

That gibe may come back to haunt the president. The appeals court did not deal broadly with the merits of the administration’s arguments, particularly the latitude the president has in setting immigration and national security policy, and that will come up in future court actions.

“I think the decision shows the Trump administration is going to face serious review by the courts to a degree that other administrations were not used to,” says Alex Nowrasteh, an immigration policy analyst with the Cato Institute. “Right off the bat, this administration has faced a serious rebuke in the courts due to its overreaching. I think this has alerted the judiciary to an extent they’re going to be much more thorough and be much more attuned to the administration’s overreach. There is no grace period here.”

On January 27, 2017, Trump issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The order cited the September 11, 2001, terrorist attacks as justification for the travel restrictions.

The order suspended for 90 days the entry of individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. It also interrupted for 120 days the United States Refugee Admissions Program, and suspended indefinitely the entry to the United States by Syrian refugees.

In its decision, the appeals court upheld a February 3 restraining order issued by U.S. District Judge James Robart, who found that Minnesota and Washington state were likely to succeed in their constitutional challenge to the executive order. The states argued that the Trump administration’s travel ban was harmful to individuals, businesses, and universities. The government claimed the states didn’t have standing to interfere with national security issues. The Ninth Circuit saw it differently.

“To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that the Government’s ‘authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,’ even in times of war,” the appeals court wrote.

Conservative groups say that the executive order is necessary to protect the United States from legitimate threats, and the ruling menaces the American public.

“This decision is disappointing and clearly puts our nation in grave danger,” wrote Jay Sekulow, chief counsel of the American Center for Law and Justice, a Washington, D.C.-based conservative civil liberties group. “The fact is that President Trump clearly has the constitutional and statutory authority to issue this order. It is clear: radical Islamic terrorists are at war with America. President Trump's order is a proper and constitutional way to protect America.”