Appeals court refuses to reinstate Trump travel ban

Outside of the 9th U.S. Circuit Court of Appeals in San Francisco
Karen Shore holds up a sign outside of the 9th U.S. Circuit Court of Appeals in San Francisco on Tuesday.
Jeff Chiu | AP

Updated: 6:27 p.m. | Posted: 4:30 p.m.

A federal appeals court refused Thursday to reinstate President Donald Trump's ban on travelers from seven predominantly Muslim nations, dealing another legal setback to the new administration's immigration policy.

In a unanimous decision, the panel of three judges from the San Francisco-based 9th U.S. Circuit Court of Appeals declined to block a lower-court ruling that suspended the ban and allowed previously barred travelers to enter the U.S.

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An appeal to the U.S. Supreme Court seems likely and would put the decision in the hands of a divided court that has a vacancy. Trump's nominee, Neil Gorsuch, could not be confirmed in time to take part in any consideration of the ban.

The appeals panel said the government presented no evidence to explain the urgent need for the executive order to take effect immediately. The judges noted compelling public interests on both sides.

"On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination."

The court rejected the administration's claim that it did not have the authority 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 court said.

While they did not rule on the actual merits of the states' argument that the travel ban was intended to target Muslims, the judges rejected the government's claim that the court should not consider statements by Trump or his advisers about wishing to enact such a ban. Considering those remarks, the judges said, falls within well-established legal precedent.

Last week, U.S. District Judge James Robart in Seattle issued a temporary restraining order halting the ban after Washington state and Minnesota sued. The ban temporarily suspended the nation's refugee program and immigration from countries that have raised terrorism concerns.

Justice Department lawyers appealed to the 9th Circuit, arguing that the president has the constitutional power to restrict entry to the United States and that the courts cannot second-guess his determination that such a step was needed to prevent terrorism.

The states said Trump's travel ban harmed individuals, businesses and universities. Citing Trump's campaign promise to stop Muslims from entering the U.S., they said the ban unconstitutionally blocked entry to people based on religion.

The president's first response to the decision came on Twitter:

The Washington attorney general's office followed suit with its own caps-lock tweet:

The appeals court sided with the states on every issue save one: the argument that the lower court's temporary restraining order could not be appealed. While under 9th Circuit precedent such orders are not typically reviewable, the panel ruled that due to the intense public interest at stake and the uncertainty of how long it would take to obtain a further ruling from the lower court, it was appropriate to consider the federal government's appeal.

Josh Blackman, a professor at South Texas College of Law in Houston, said the "million-dollar question" is whether the Trump administration would appeal to the Supreme Court.

That could run the risk of having only eight justices to hear the case, which could produce a tie and leave the lower-court ruling in place.

"There's a distinct risk in moving this too quickly," Blackman said. "But we're not in a normal time, and Donald Trump is very rash. He may trump, pardon the figure of speech, the normal rule."

Lori Swanson
Lori Swanson
Jim Mone | AP 2014

Minnesota Attorney General Lori Swanson joined the suit last Wednesday, saying that the travel ban had "immediate and significant effects" in the state.

On Thursday evening, Swanson issued a statement in response to the appeals court's ruling:

"A more deliberate approach by the Administration could have avoided this litigation. The Executive Order was haphazard in its approach and roll-out; not properly vetted by the Congress or the federal Departments of State, Justice, Homeland Security, or Defense; and created needless chaos for children, families, students, physicians, businesses, and travelers. It should be further noted that the White House has not identified to the court any detainee who posed a risk to national security."

Swanson also on Thursday released new affidavits showing the travel ban's impact on Minnesota.

In the initial complaint, Swanson shared the story of Mushkaad Abdi, a 4-year-old Somali girl who was born in a refugee camp and was initially barred from joining her family in Minnesota because of the ban.

Mushkaad Abdi is reunited on Thursday with her mother and sisters.
Mushkaad Abdi is reunited on Thursday with her mother Samira Dahir and sisters Muwahib and Mumtaz.
Courtesy of Sen. Franken's office

The child was stopped at the airport in Uganda soon after the order came down. Minnesota Senators Al Franken and Amy Klobuchar say they pressed Homeland Security secretary John Kelly to allow Mushkaad into the U.S. She reunited with her mom and sisters last Thursday.

Mushkaad's was just one instance of the turmoil that spread among Minnesota's immigrant and refugee communities.

"President Trump's executive order slammed our doors shut on innocent people," Franken said in a statement Thursday night. "I am encouraged by the appeals court's decision that questions the constitutionality of this terrible order, but recognize that this will not be the final say on this matter — though I hope it is soon struck down for good."

Trump's order put a four-month ban on any refugees. It barred all Syrians in immigration indefinitely from Syria and for 90-days from six other Muslim-majority countries.

More than 3,000 refugees from 25 countries arrived in Minnesota last year. The largest portion of them — just over 1,400 people — came from Somalia.

Many more visa or green card-holding people from affected countries were stopped at airports.

Both lawyers for the Justice Department and the Washington attorney general faced tough questioning during an hour of arguments Tuesday conducted by phone — an unusual step — and broadcast live on cable networks, media websites and social media. It attracted a huge audience.

Protesters make their way down Hennepin Avenue
Protesters make their way down Hennepin Avenue in Minneapolis during a protest against President Trump's immigration ban on Jan. 317.
Tom Baker for MPR News

The judges hammered away at the administration's claim that the ban was motivated by terrorism fears, but they also challenged the states' argument that it targeted Muslims.

"I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected," Judge Richard Clifton, a George W. Bush nominee, asked an attorney representing Washington state and Minnesota.

Only 15 percent of the world's Muslims are affected by the executive order, the judge said, citing his own calculations.

"Has the government pointed to any evidence connecting these countries to terrorism?" Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked the Justice Department attorney.

The lower-court judge temporarily halted the ban after determining that the states were likely to win the case and had shown that the ban would restrict travel by their residents, damage their public universities and reduce their tax base. Robart put the executive order on hold while the lawsuit works its way through the courts.

After that ruling, the State Department quickly said people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — with valid visas could travel to the U.S. The decision led to tearful reunions at airports round the country.

The Supreme Court has a vacancy, and there's no chance Trump's nominee, Neil Gorsuch, will be confirmed in time to take part in any consideration of the ban.

The ban was set to expire in 90 days, meaning it could run its course before the court would take up the issue. The administration also could change the order, including changing its scope or duration.