In a significant setback for the Trump administration’s first major attempt to carry out its anti-terrorism agenda, a federal appeals court Thursday refused to reinstate a controversial executive order barring travelers from seven predominantly Muslim nations from entering the U.S.
A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that a Seattle federal judge’s earlier restraining order on the new policy should remain in effect while the judge further examines its legality.
The travel moratorium signed Jan. 27 stirred chaos at airports and protests worldwide as at least 60,000 visas were canceled, including those held by students visiting families abroad and engineers working in the U.S.
The three judges, two Democratic appointees and one appointed by a Republican, unanimously said the administration had not shown an urgent need to have the order go into effect immediately. By contrast, they said, the two states that challenged it had shown that some of their residents would be harmed by having their right to travel cut off.
In a ruling that rejected the Trump administration’s arguments at almost every turn, the court faulted the federal government for failing to present evidence that the ban was needed for national security. “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,” the court said.
The panel also denied the administration’s last-gasp request to limit the scope of the legal hold, perhaps making it apply to some but not others.
President Trump lost no time in responding to the court’s ruling on Twitter: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
U.S. District Judge James L. Robart issued a temporary restraining order last week blocking enforcement of Trump’s directive after concluding that a challenge by the states of Washington and Minnesota was likely to succeed.
The Seattle-based judge, appointed by President George W. Bush, also concluded that halting the ban — at least for a while — would cause no undue harm to the country.
Administration lawyers have argued that the country could be at risk of a terrorist attack until heightened vetting measures for travelers from the seven identified countries are put into place.
The appellate judges rejected the Trump administration’s argument that the courts lacked the right to review the president’s executive order. "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the panel said.
"Indeed, federal courts routinely review the constitutionality of — and even invalidate — actions taken by the executive to promote national security, and have done so even in times of conflict,” the panel added.
The court said the states were likely to succeed in their due process claim, noting that the due process protections provided under the Constitution apply not only to citizens, but to all “aliens” in the country, as well as “certain aliens attempting to re-enter the United States after traveling abroad.”
The judges also said they took note of the “serious nature” of the states’ claim that the travel ban, because it targets Muslim-majority nations and provides exceptions for members of persecuted religious minorities, constitutes religious discrimination.
“We express no view as to any of the States’ other claims,” the court said, though it did note that the states had also offered “ample evidence” that reinstatement of the ban would harm their universities and businesses.
"The government lost across the board," said Arthur Hellman, a University of Pittsburgh law professor. "At almost every stage, the court says to the government, 'You have to persuade us, but you did not.'"
Trump’s executive order, issued only seven days after the president took office, placed a 90-day block on admission of citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, all of which administration officials say have links to terrorism.
It also included a 120-day ban on all refugee admissions, indefinite suspension of the admission of Syrian refugees and preference for refugees who are members of persecuted religious minorities.
Washington and Minnesota sued Trump, maintaining the order was hurting their businesses and disrupting their public universities.
"Bottom line, this is a complete victory for the state of Washington," Washington Atty. Gen. Bob Ferguson, who brought the lawsuit on behalf of his state and Minnesota challenging the executive order, said at a news conference after the decision. "We are a nation of laws. And as I have said, as we have said from Day One, that those laws apply to everybody in our country, and that includes the president of the United States.”
Hillary Clinton, Trump’s Democratic opponent in the 2016 campaign, had a quick, terse response on Twitter, apparently referring to the unanimity of the ruling: “3-0,” it said.
Eric H. Holder Jr., attorney general under President Obama, also responded on Twitter with a photo of Sally Yates, the acting attorney general whom Trump fired after she refused to defend the president’s executive order. “Skill, judgment, courage. VINDICATED. 3-0,” Holder wrote.
Muslim groups across the country applauded the appellate court’s ruling.
"Today the U.S. Court of Appeals for the Ninth Circuit not only upheld a federal court ruling that placed a temporary nationwide halt to President Trump’s Muslim ban, it also upheld long-treasured American values of the rule of law and liberty and equality for all, regardless of religion," Farhana Khera, executive director of the civil rights group Muslim Advocates, which has filed a brief in the case, said in a statement.
But former Arkansas Gov. Mike Huckabee, a 2016 Republican presidential candidate, tweeted that the court “thumbed nose at Constitution and law and did left-wing politics.”
Trump, he said, “tries to protect USA; court protects terrorists.”
Jay Sekulow of the American Center for Law and Justice, a conservative Christian group that filed a brief in support of the travel ban, said the decision “puts our nation in grave danger.”
“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,” he said.
The Trump administration can appeal the decision directly to the U.S. Supreme Court, which has four Democratic appointees and four Republican appointees and may be unable to reach a majority decision. The seat of the late Justice Antonin Scalia remains vacant.
Or it could agree to leave the stay in place and return to the district court in Seattle to begin arguing the constitutional issues that form the heart of the case.
Kellyanne Conway, a senior advisor to Trump, emphasized that the ban has always been about “keeping the country safe,” and hinted that the administration is interested in getting down to the essentials of the case.
“This ruling does not affect the merits at all,” she said. “It is an interim ruling, and we are fully confident that now that we will get our day in court, and have an opportunity to argue this on the merits, that we will prevail.”
UC Berkeley law professor John Yoo, who worked in President George W. Bush’s administration and helped write a memo justifying torture of suspected terrorists, said the Supreme Court is unlikely to agree to review the decision on the stay. The inclusion of green card holders in the travel ban doomed it legally, Yoo said, and the high court rarely agrees to hear such emergency appeals.
Yoo said the 9th Circuit ruling was on less solid ground on other issues: whether the states had standing to sue and whether visa holders had a right to a hearing before their visas were canceled. The administration lost because “it rushed out this order in an ill-considered and haphazard way,” the conservative legal scholar said. A “more cautious, more modest” executive order would have survived legal scrutiny, he said.
UC Irvine Law School Dean Erwin Chemerinsky said the most important aspect of the appeals court’s ruling was its assertion of the role of the courts in the nation’s system of government. The court, he said, reaffirmed "the most basic aspect of the rule of law: No one, not even the president, is above the law, and it is the role of the courts always to review the constitutionality of government actions."
U.S. Sen. Kamala D. Harris, a Democrat on the Committee on Homeland Security and Governmental Affairs and California’s former attorney general, said the ruling “recognizes this administration has utterly failed to justify the tremendous harm this ban has inflicted on our country.”
The ban, she said in a statement, “has jeopardized our national security and undermined our nation’s core values as a place of refuge for those fleeing violence and seeking freedom.”
During the presidential campaign, Trump vowed he would make the country safer from terrorism by barring Muslims from other countries from entering.
But federal lawyers defending the ban said the seven countries targeted in the executive order were designated not because they were predominantly Muslim but because Congress and the Obama administration had linked them to terrorism.
The Trump administration also argued that the president could not be second-guessed by the courts on his executive action because as a matter of law he has authority over foreign relations and national security.
The 9th Circuit, which decides federal matters for nine Western states, is considered one of the more liberal circuit courts in the nation.
But the most liberal of the 9th Circuit’s judges, those appointed by President Carter, are gradually retiring from the court.
The Clinton and Obama appointees are generally viewed as much more moderate, and judges chosen during the last five terms of Republican presidents tend to be conservative or moderately conservative.
Also, judges are randomly selected for the three-member panels, and depending on whose names are drawn, a panel can be conservative, liberal or middle of the road.
The Seattle case that led to the 9th Circuit review is among dozens of lawsuits going through federal district courts over the travel ban.
In Virginia, a Friday hearing was scheduled in front of a federal judge in a case brought by the state, which has asked for a preliminary injunction against the ban. There is also a hearing scheduled in late February in Brooklyn, N.Y., where a federal judge handed the American Civil Liberties Union the first legal victory against the ban when she issued an emergency order to halt deportations of visa holders who had arrived in the U.S. but were denied entry.
New federal lawsuits are also still being filed, including one on Thursday in Washington, D.C., on behalf of several Iranian American organizations.
Times staff writers Kurtis Lee, Matt Pearce and Nina Agrawal contributed to this report.
5:55 p.m.: The story was updated with additional analysis from liberal and conservative legal scholars and a comment from California U.S. Sen. Kamala Harris.
5:10 p.m.: The story was updated with additional reaction.
4:20 p.m: The story was updated with additional reaction.
3:45 p.m.: This story was updated with additional details from the ruling and initial reaction.
This story was originally published at 3:16 p.m.