The Judges Were Skeptical About Trump's Travel Ban

by Morgan Brinlee
Joe Raedle/Getty Images News/Getty Images

In a major blow his administration's immigration policies, a federal appeals court ruled not to reinstate President Donald Trump's ban on travelers from seven predominantly Muslim nations on Thursday. In a ruling increasing the likelihood the case will end up before the Supreme Court, the court said it was "beyond question" that federal courts had the authority to hear constitutional challenges to presidential executive actions. While the court minced no words in its ruling regarding its authority to oversee the president, what did the court say about Trump's travel ban?

"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," a 29-page ruling handed down from Circuit Judges William C. Canby, Richard R. Clifton, and Michelle T. Friedland said. "We therefore deny its emergency motion for a stay."

The case had been brought before the U.S. Court of Appeals for the Ninth Circuit in San Francisco, California shortly after U.S. District Judge James Robart in Seattle issued a temporary restraining order suspending key parts of the president's executive order on immigration last week. Following Robart's ruling, which allowed travelers previously barred by Trump's executive order to enter the United States, the Justice Department filed a request with the Ninth Circuit to stay his order while the case made its way through the courts. During arguments delivered Feb. 7, the three-judge panel hearing the case appeared skeptical of both the government's request to stay the ruling and the broad scope Robart's order.

In their ruling, the judges concluded that the States had demonstrated harms to their proprietary interests which could be traced back to the president's executive order.

We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.

The ruling also rejected the Justice Department's argument that the president had "unreviewable authority to suspend the admission of any class of aliens."

Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.

While the judges emphasized their analysis of the Government's potential to succeed on appeal "is a preliminary one," based only on the strength of the arguments and evidence they put forth, they ultimately ruled the government had not made a strong showing.

The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims.

In their ruling, the judges dismiss the government's argument "that most or all" of those affected by Trump's executive order on immigration "have no rights under the Due Process Clause found in the Fifth Amendment of the Constitution."

The Fifth Amendment of the Constitution prohibits the Government from depriving individuals of their "life, liberty, or property, without due process of law"... The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they "appl[y] to all 'persons' within the United States, including aliens," regardless of "whether their presence here is lawful, unlawful, temporary, or permanent." These rights also apply to certain aliens attempting to reenter the United States after travelling [sic] abroad.

The judges also contend that President Trump's repeated promises to implement a "Muslim ban" could be cited as evidence of the executive order's intent to discriminate or favor one religious group over another.

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have 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, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims

In response to arguments that the order was necessary to prevent terrorist attacks, the judges' ruling called attention to the Government's failure to provide any evidence to support their claim.

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.

Although the ruling issued by the U.S. Court of Appeals for the Ninth Circuit Thursday centered only on whether the president's travel ban should be blocked while other courts hear cases on its legality, Trump's administration will likely appeal the decision at the Supreme Court.

You can read the full transcript of the court's opinion on reinstating President Trump's immigration order here.