A federal appeals court refused on Thursday to reinstate President Donald Trump’s ban on travellers from seven predominantly Muslim nations, unanimously rejecting the administration’s claim of presidential authority, questioning its motives and concluding that the order was unlikely to survive legal challenges.
The appellate 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 three judges of the San Francisco-based 9th US Circuit Court of Appeals said the argument that the ban targets Muslims raised “serious allegations” and presented “significant constitutional questions,” and they agreed that courts could consider statements by Mr Trump and his advisers about wishing to enact such a ban.
The 9th U.S. Circuit Court of AppealsCredit: AP
While the court said it could not decide whether the order discriminated against a particular religion until the case had been “fully briefed,” it added that the states had presented evidence of “numerous statements” by the president “about his intent to implement a ‘Muslim ban.'”
The panel declined to block a lower-court ruling that suspended the ban and allowed previously barred travellers to enter the US.
“Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.”
The judges sided with the states on every issue except for one technical matter. They rejected the administration’s argument that courts did not have the authority to review the president’s immigration and national security decisions.
The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens”… The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one… There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
The government contended that President Donald Trump has “unreviewable authority to suspend the admission of any class of aliens”Credit: EPA
They said the administration failed to show that the order met constitutional requirements to provide notice or a hearing before restricting travel.
And they said the administration presented no evidence that any foreigner from the seven countries was responsible for a terrorist attack in the US.
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…
More legal arguments would be needed to decide the actual fate of Trump’s order, they said.
The administration argued that the courts do not have access to the same classified information about threats to the country that the president does. The judges countered that “courts regularly receive classified information under seal.”