In a major blow to the Trump administration, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled unanimously Thursday to reject a bid to reinstate President Donald Trump’s travel ban, setting the stage for a dramatic showdown in the U.S. Supreme Court.
In its 29-page opinion, the 9th Circuit upheld a temporary restraining order — issued on Feb. 3 by Judge James Robart, a federal judge in Seattle — that blocked key parts of Trump’s executive order, which suspended refugee resettlements and temporarily barred citizens of seven Muslim-majority countries from entering the United States.
The decision by the 9th U.S. Circuit Court of Appeals effectively keeps Hawaii’s lawsuit against the Trump administration on hold — for now.
The high court, still one justice short following Justice Antonin Scalia’s death last year, could deadlock in a 4 to 4 tie — a scenario that would keep Robart’s decision in place.
The 9th Circuit’s three judges — including Judge Richard Clifton, who is based in Honolulu — were emphatic in their rejection of the Trump administration’s argument that the president’s national security decisions should not be second-guessed by the courts.
“The government has taken the position that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections,” the judges wrote. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
The judges also noted that the Trump administration offered little evidence to support why the travel ban was needed.
“Rather than present evidence to explain the need for the executive order, the government has taken the position that we must not review its decision at all,” the judge wrote.
Bob Ferguson, the state attorney general for Washington, which filed the lawsuit along with Minnesota, hailed the decision.
“No one is above the law, not even the president,” Ferguson said in a statement, urging Trump to withdraw his “flawed, rushed and dangerous” order. “If he refuses, I will continue our work to hold him accountable to the Constitution.”
“No one is above the law, not even the president.” — Washington Attorney General Bob Ferguson
But the judges stopped short of endorsing the states’ allegation that Trump’s order violated the First Amendment’s establishment clause by discriminating against Muslims.
Still, the judges noted that the states “offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the executive order was intended to be that ban,” and such evidence could be used later for weighing the constitutionality of Trump’s order.
Meanwhile, the decision effectively keeps Hawaii’s lawsuit in limbo: On Tuesday, U.S. District Court Judge Derrick Watson suspended all proceedings, as long as Robart’s temporary restraining order remains in place.
Even so, Hawaii Attorney General Doug Chin said the decision represented “a victory for Americans.”
“Hawaii’s interests in stopping actions that discriminate against persons strictly based upon national origin and religion are protected for now, but this case is not over,” Chin said in a statement.
U.S. Sen. Mazie Hirono joined Chin in praising the decision.
“Tonight’s ruling is a first-step victory for the core values of our democracy and demonstrates why an independent judiciary is so important,” Hirono said in a statement. “For all the chaos created by this executive order, the wiser course would be for President Trump to rescind this unconstitutional order immediately.”
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