In continuing to block President Trump's executive order banning travel from seven mostly Muslim countries, a federal appeals court rebuked the administration's claim that presidential authority over immigration cannot be reviewed.
The administration's sweeping assertion of presidential power "runs contrary to the fundamental structure of our constitutional democracy," the three-judge panel of the U.S. 9th Circuit Court of Appeals wrote.
"Courts owe considerable deference to the president’s policy determinations" in areas of immigration and national security, but they still have authority to decide whether those orders violate constitutional rights, the judges said.
“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,” the panel of two Democratic appointees and a Republican unanimously decided in an unsigned opinion.
Today marks a victory for American freedom over presidential tyranny. The court has sided with refugees who thirst for hope over a president who yearns to hate. In the memory of Anne Frank, a refugee America denied entry, our nation has a moral obligation to Save Every Anne. Never again means never again to anyone.
Steven Goldstein, executive director of the Anne Frank Center for Mutual Respect
Feb. 9, 2017, 3:34 p.m.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
Judges' decision, rejecting Trump administration argument that the courts lacked the right to review his executive order
In a significant pushback from the judiciary, a federal appeals court decided Thursday to continue blocking enforcement of President Trump’s executive order barring travelers from seven predominantly Muslim nations from entering the United States.
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 court issued the ruling “per curiam,” which means it was a unanimous decision.
The government lawyer defending President Trump’s foreign travel ban made an unusual closing plea when arguing this week before a panel of U.S. 9th Circuit Court judges.
Sensing he had not convinced them, Justice Department attorney August Flentje suggested they issue a middle-ground ruling that would shield some travelers, but not others.
He said the temporary restraining order issued by Judge James L. Robart in Seattle is “vastly over-broad,” because it extends to many thousands of foreigners who have obtained U.S. visas but have never used them to travel here.
At different times during oral arguments in the U.S. 9th Circuit Court of Appeals over whether to reinstate President Trump's travel ban it looked like either Washington state attorney Noah G. Purcell or Justice Department attorney August E. Flentje had the upper hand.
Both lawyers faced sharp questioning, but legal experts cautioned not to read too much into the matter.
"It seemed like Washington state had a better argument. The Department of Justice attorney really struggled with articulating why the executive order had to remain in place," said Jessica Levinson, a law professor at Loyola Law School in Los Angeles.
In making the case to reinstate President Trump's executive order on immigration, attorneys for the Department of Justice have zeroed in on the chief executive's authority to decide issues of national security.
That power, they argued in court papers, is sacrosanct and should not be challenged, as it was by the judge who issued a sweeping emergency order last week that halted the travel restrictions.
“Judicial second-guessing of the President’s determination,” the lawyers wrote in a brief, “would constitute an impermissible intrusion on the political branches’ plenary constitutional authority over foreign affairs, national security, and immigration.”