By Miriam Raftery
February 9, 2017 (Seattle) – In a unanimous verdict in State of Washington v. Trump, a three-judge panel on the 9th Circuit Court of Appeals ruled against President Donald Trump and refused to reinstate a travel ban on refugees and immigrants from seven Muslim nations. That means admission to the U.S. will resume for refugees and for immigrants who are citizens of of Iran, Iraq, Libya Sudan, Somalia, Syria, and Yemen, as well as green card holders with permanent residency in the U.S.
In their decision, the judges wrote, “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. 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. We disagree…”
The unanimous decision is a stinging rebuke to the President, who had asserted that only the president has the power to determine who shall or shall not enter our nation. The judges include a Republican appointee and two Democratic appointees, all found that the court system has a right to review such decisions and upheld a temporary stay ordered by a federal judge who is also a Republican appointee. Read the full text of the 9th Circuit’s ruling here: https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf
Washington State Attorney General Bob Ferguson, filed the suit challenging the ban, said, “Bottom line, this is a complete victory for the state of Washington,” adding that the 9th Circuit’s ruling “effectively granted everything we sought.”
Trump issued an angry response on Twitter, posting in all caps, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
The judges did not rule on the merits of the government’s core arguments on national security, instead finding that the hastily drafted broad ban would cause “irreparable harm” to many individuals and that the Justice Department failed to prove a compelling need for urgency. Thus the court allowed the injunction halting the ban to stay in place while the case works its way through the lengthy legal process.
The State of Washington, which filed the case, argued that the travel ban tore families apart and left travelers stranded including state university students; a friend of the court brief filed by 97 companies included giants such as Amazon and Microsoft argued that the ban caused harm to their businesses including recruitment efforts and barring employees oversees from returning to the U.S.
The court further noted that the state of Washington has presented serious issues and “significant constitutional questions” over violation of the clause prohibiting establishment of religion, while the Governor has not met the burden of demonstrating a likelihood of success on its due process arguments. While Trump has denied this is a “Muslim ban,” the court noted the state has presented numerous examples of Trump declaring his intent to impose a Muslim ban which would be discriminatory.
Trump has several options. He could wait for the trial court, which issued the initial injunction blocking the ban temporarily, to hear the full case and issue a ruling. That's not likely, given the executive order was only for 90 days. He could ask the full 9th Circuit Court of Appeals, all nine judges, to reconsider the stay. Or he could ask the Supreme Court to intervene on an emergency basis.
The high court is currently split 4-4 between liberal and conservative justices due to the vacancy left by death of Anthony Scalia. It would take 5 votes to overturn the Appeals Court decision, which experts believe Trump is unlikely to get currently.
Even if his Supreme Court nominee, Neil Gorsuch, is confirmed by the Senate before the case reaches the Supreme Court, it is far from clear whether the court would rule in Trump’s favor since even conservative judges have already ruled against the ban. Justices may also seek to rein in executive overreach, particularly given Trump’s attacks on judges, including a tweet denigrating trial court judge, a George W. Bush appointee, as a “so-called judge” and another tweet suggesting judges should be blamed if any terror attack occurs to the court’s decision.
Another option would be to rescind the ban and issue a new executive order more narrowly crafted in an effort to withstand a legal challenge.
View all court documents in the case: https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000860