Trump’s Muslim ban fails court test again

US Ninth Circuit dealt another setback to Trump’s effort to ban immigration from seven predominantly Muslim countries. Cindy Chu

The United States Court of Appeals for the Ninth Circuit has upheld the nationwide stay against US President Donald Trump’s executive order barring entry to all refugees and most people from seven predominantly Muslim countries.

Trump attacked the decision in a tweet shortly after the court in San Francisco issued it on Thursday afternoon:

He renewed his assault early Friday morning, with a tweet calling the unanimous ruling by the three-judge panel “disgraceful.”

The Department of Justice has said it will appeal further. It can ask for a review by the full Ninth Circuit, before the case could eventually make its way to the US Supreme Court.

Trump told reporters at the White House the ruling was “a political decision.”

“It’s a decision that we’ll win, in my opinion, very easily,” he added. So far his administration has lost the initial argument and two challenges in the case that was brought by the state of Washington, joined by Minnesota.

“The irony from our perspective is that we’ve seen him in court twice now, and we’ve won both times. It’s not like it doesn’t count until you get to the Supreme Court,” Washington’s Solicitor General Noah Purcell told CNN.

With one seat still vacant, the Supreme Court is balanced 4-4 between liberal and conservative justices. If the court were to deadlock in the case it would leave the Ninth Circuit’s ruling in place.

The temporary restraining order, issued by US District Judge James Robart in Seattle on 3 February, blocked key parts of the executive order, commonly referred to as the Muslim ban.

Immediately after Robart’s decision, US borders were opened to thousands of US visa holders, including approved refugees, who had been unable to enter the country since Trump issued his executive order on 27 January.

The State Department also began reinstating thousands of visas it had revoked.

President’s power

The Trump administration filed an emergency appeal to lift the stay, which the Ninth Circuit rejected last week, requiring the government to argue its case before a three-judge panel earlier this week.

At issue was whether Trump’s executive order should be blocked while the case continues in court.

In arguing against Judge Robart’s stay, the administration has claimed that the president has “unreviewable authority to suspend the admission of any class of aliens” – essentially unchecked power to decide immigration matters because they involve national security.

But the Ninth Circuit judges sharply rejected this logic. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” their ruling states.

The decision acknowledges that courts defer to the executive branch on issues of immigration and national security, but notes that the judiciary maintains the authority to review executive decisions.

“The Supreme Court has made clear that the government’s ‘authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,’ even in times of war,” the judges write.

Ban causes “substantial” injury

They provide several examples of courts striking down government policies adopted on the basis of “national security,” including the George W. Bush administration’s attempt to deny non-citizens classified as “enemy combatants” access to US courts, and the US government’s internment of citizens of Japanese ancestry during the Second World War.

During the hearing on Tuesday, the appeals judges pressed August Flentje, the Justice Department attorney representing the Trump administration, for any evidence supporting the claim that people from the seven countries listed in the executive order pose a great risk.

Flentje’s answered that Trump had determined that to be the case, and that Congress grants the president the authority to suspend certain classes of immigrants.

But the court was not convinced. “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 decision states.

By contrast, the judges found that the states of Washington and Minnesota “have offered ample evidence that if the executive order were reinstated even temporarily, it would substantially injure the states and multiple ‘other parties interested in the proceeding.’”

No time for complacency

The judges affirmed that the Constitution’s Fifth Amendment right to due process belongs to everyone inside the United States, including non-citizens, regardless of “whether their presence here is lawful, unlawful, temporary or permanent.”

The government had argued that people affected by the executive order had no claim to due process.

Notably, the court found that the executive order could still apply to legal permanent residents – green card holders – even though the White House counsel has said it would not.

“In light of the government’s shifting interpretations of the executive order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”

Immediately after Trump issued the executive order, US officials said it would apply to green card holders, before backtracking.

Thursday’s ruling will not affect about 20 other lawsuits around the country challenging Trump’s executive order, but it will ensure that its key provisions cannot be enforced for now.

“Don’t get complacent on the #muslimban. The people do the work and the courts follow,” Omar C. Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, tweeted. “If you came out you are why we’re winning. Don’t stop.”

The ACLU has sued the administration separately over the ban. Jadwat was referring to the massive protests that have taken place across the country, especially at airports, since Trump signed it.

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Charlotte Silver

Charlotte Silver's picture

Charlotte Silver is an independent journalist and regular writer for The Electronic Intifada. She is based in Oakland, California and has reported from Palestine since 2010. Follow her on Twitter @CharESilver.