Federal Appeals Court Unanimously Refuses to Reinstate Trump Travel Ban from Seven Muslim Countries

President Trump’s sweeping executive order banning Muslim travelers from seven countries was thoroughly rejected by a federal appeals court Thursday, 3-0.

The 29-page opinion issued by a three-judge panel at the Ninth Circuit Court of Appeals flatly rejected Trump’s legal arguments, including his assertion that a decree issued in the name of national security could not be questioned.

“Federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict,” the court said. “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.”     

The ruling means travelers with legal visas can continue to come to the U.S. from the seven Middle Eastern countries named in the executive order.

The decision will surely prompt a bellicose response from the White House, as Trump has attacked federal judges in recent days for not giving him unlimited power. As the administration enters its third week, the first major impediments to Trump’s power are emerging from the federal judiciary, where litigation on the travel ban continues.   

Strictly speaking, the Ninth Circuit's ruling was narrow. It merely upheld the stay—or nationwide suspension—of the travel ban that was issued last weekend by a U.S. District Court judge in Washington state. That ruling was issued by a judge appointed by former President George W. Bush.

But the Ninth Circuit's ruling established a clear path to challenging Trump's decrees. It said the two states had standing to sue on behalf of thousands of foreign students, employees and residents with legal visas. It said the states had shown Trump’s sweeping ban was unconstitutional under the Fifth Amendment—violating due process access to courts. (It did not decide on whether the ban was also unconstitutional under the Establishment Clause barring the government from religious persecution.)

The court also chastised the White House for its sloppy drafting and backtracking, due to the confusion around whether the ban would apply to green-card holders. At first it did, and then the White House later backtracked, saying the ban did not apply to legal residents.

“Moreover, 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,” the court ruling said.

The court also rejected Trump’s argument to reel in the temporary restraining order (TRO) so it wouldn’t apply nationwide—meaning immigration officials could enforce the ban in regions of the country where no federal court had blocked it.

“We decline to limit the geographic scope of the TRO,” they said. “The Fifth Circuit [Court of Appeals] has held that such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy.”    

Democrats and civil liberties advocates were quick to praise the appeals court’s ruling.

“The 9th Circuit Court of Appeals' unanimous decision to deny the Trump administration's request to reinstate its unconstitutional Muslim ban is a victory for equal protection under the law and our fundamental American values,” said Rep. Bennie G. Thompson (D-MS), Ranking Member of the Committee on Homeland Security. “Banning mothers and children, the elderly, and others who pose no threat to this country simply because of their faith is not only unlawful, but un-American.”

Trump’s executive order, which caused chaos at airports across the U.S. and abroad when it was suddenly implemented with no warning, has now been found to be unconstitutional by a range of federal judges appointed by both Democratic and Republican presidents. However, the legal proceedings will continue, and there are several possible directions for things to go next. The White House could appeal immediately to the U.S. Supreme Court justice who oversees the Ninth Circuit, Anthony Kennedy, to reimpose the executive order. If that happens, it’s likely Kennedy would refer that request to the full Supreme Court. Or they could go back to the district court that issued the TRO for more extensive proceedings and try to get the order reversed there.

Either way, the Ninth Circuit ruling is a major legal defeat for the Trump White House.