In a major legal blow to President Donald Trump’s controversial scheme of temporarily prohibiting people from seven Muslim majority countries, the 9th US Circuit Court of Appeals has upheld the suspension of the executive order. A three-judge bench unanimously rejected the appeal to reinstate the ban.
The bench comprising circuit judges William C Canby, Richard R Clifton and Michelle T Friedland struck down the appeal and ruled that, ‘The Government has not shown that a stay is necessary to avoid irreparable injury’.
The court stated that the government has neither submitted any explanation as to the urgent need for the executive order to be placed immediately into effect nor has submitted any evidence to substantiate the claim that any alien from any of the countries listed in the order has perpetrated terrorist attack in the United States.
The court observed that in contrast, the states have offered ample evidence suggesting that if the executive order is reinstated, even temporarily, it would cause substantial injury to the state and to those affected by the travel prohibitions, including university employees and students, separated families and stranded residents abroad.
The ruling also put down the Trump government’s claim that the courts are powerless to rule over a presidential national security assessment. The court stated that judges have a crucial role to play in national security. They stated, ‘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 decision further increases the odds for President Trump to get his order reinstated. The controversial order pronounced by the new president made several changes to the policies and procedures by which non-citizens may enter the US.
The key aspects include suspending for 90 days entry of aliens from seven countries - Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Secondly, the executive order suspends for 120 days the United States Refugee Admissions Program.
Upon resumption of the refugee programme, the Secretary of State is directed to prioritise refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality, and thirdly, the order indefinitely suspends entry of Syrian refugees. The Secretaries of State and Homeland Security are advised to make case-by-case exceptions to these provisions “when in the national interest”.
Federal district judge James L Robart had last Friday blocked key parts of the travel ban, allowing thousands of foreigners to enter the country.
The court upheld the decision by the district judge and stated that in evaluating the need for a stay, they must consider the public interest generally and stated ‘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. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.’
It was, however, stated that to settle the final fate of the order, more legal arguments would be needed. The court said it could not decide over the matter of the order being discriminatory towards one particular religion and to reach such a decision, it would require to be ‘fully briefed’. It further added that the states had presented evidence of “numerous statements” by the President ‘about his intent to implement a ‘Muslim ban’.
The bench rejected the government’s contention that the ‘waiver provision’ would ensure that the innocent do not unnecessarily suffer because of the order and stated that the government has offered no explanation as to how these waivers would function. The government has not otherwise explained how the executive order could realistically be administered only in parts such that the injuries listed above would be avoided, it was held.
Considering the contentions, the bench unanimously denied the emergency motion for a stay pending appeal. It contended that the states were likely to succeed at the end of the day because Trump’s order appeared to violate the due process rights of lawful permanent residents, people holding visas and refugees.
Soon after the ruling, President Trump tweeted, ‘See you in court, the security of our nation is at stake!” In a briefing to reporters, he alleged that the ruling was ‘political’ and asserted that his administration would ultimately win the case.
The Jan. 27 order sparked chaos and protests soon after it was proclaimed. Travelers found themselves stranded at airports. The State Department said it cancelled about 60,000 visas in the days following the ban. The order was challenged by the states of Washington and Minnesota, which argued that it violated constitutional protections against religious discrimination.
The Justice Department, which spoke for the administration at oral argument on Tuesday, said it was reviewing Thursday's decision and considering its options.
As per media reports, reactions have been pouring in from all quarters and affected parties. While the Democrats have rejoiced, some Republicans have also raised questions on the Ninth Circuit’s decision and said it would not withstand a challenge in the Supreme Court.
The World Relief Corporation, one of agencies that resettles refugees in the US, hailed the ruling and called it ‘fabulous news’ for the 275 newcomers who are scheduled to arrive in the next week, many of whom will be reuniting with family.
Trump, however, remains resolute in his methodology of tackling terrorism. He said his executive order aims to head off attacks by Islamist militants.
Senior White House adviser Kellyanne Conway told Fox News: ‘It's an interim ruling and we're fully confident that now that we will get our day in court and have an opportunity to argue this on the merits we will prevail.’
She, however, did not comment whether the administration plans to go to the Supreme Court and said Trump ‘will be conferring with the lawyers and make that decision’.
The Council on American-Islamic Relations, the nation's largest Muslim civil rights and advocacy organisation, said Trump's policies "still pose a threat to communities of color, religious minorities, women, and others.”
Democrats expressed delight over the ruling. ‘This Administration’s recklessness has already done significant harm to families, and undermined our fight against terror,’ House Democratic leader Nancy Pelosi said in an emailed statement.
However, Tom Fitton from conservative group Judicial Watch tweeted, ‘The Ninth Circuit ruling is a dangerous example of judicial overreach.’
Read the order here.