Donald Trump’s controversial travel ban suffered a major setback on Thursday after a panel of three judges upheld an injunction against the president’s order banning arrivals from seven Muslim-majority countries.
In its unanimous ruling, the three judges on the ninth circuit court of appeals upheld the temporary restraining order, which was issued by Judge James Robart, a federal district court judge in Washington state, and has blocked the enforcement of many key parts of the executive order.
The court found that “the government has not shown a stay is necessary to avoid irreparable injury.” In particular, its ruling noted “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.”
Almost immediately, Trump tweeted his response: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
Speaking to reporters in the West Wing shortly after that the ruling, he characterized it as “a political decision” and said that “the safety of the nation is at stake”. Trump added that he “looks forward to seeing them in court”.
Thursday’s ruling does not end all litigation over the executive order, which sparked international outcry when it was first issued. Instead, it simply means that its provisions – which include a 90-day travel ban from seven Muslim-majority countries, a 120-day freeze on admission of any refugees into the United States, as well as indefinite halt to admitting any refugees from Syria – cannot be enforced again as the legal battle moves forward. There are roughly 20 lawsuits against the travel ban currently making their way through courts in various states.
On Robart’s injunction, the federal government can now ask the supreme court to review the ninth circuit’s ruling. But the unanimous ruling suggests that the Trump administration will face an uphill battle.
The supreme court could also sidestep controversy and defer an appeal, leaving the ruling in place as the case works its way through other courts.
The appeals court decision follows a hearing Tuesday night, where lawyers for the state of Washington, which was challenging the ban, argued with attorneys for the justice department.
August Flentje, the lawyer for the federal government, argued that the ban was “plainly constitutional,” noting that Congress has granted the president the authority to suspend certain classes of immigrants. However, he additionally argued that the decision should not be subject to judicial review, noting that “judicial second-guessing of the president’s national security determination in itself imposes substantial harm on the federal government and the nation at large”.
The court rejected much of this argument in its ruling. The panel wrote “although courts owe considerable deference to the president’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action”.