A West Coast federal appeals court upheld the freeze on President Trump’s travel ban Monday, declaring that Trump had exceeded his lawful authority in suspending the issuance of visas to residents of six Muslim majority countries and suspending the U.S. refugee program.
A three-judge panel with the U.S. Court of Appeals for the 9th Circuit ruled against the administration unanimously. Their ruling is another blow to Trump — though the fate of his travel ban already had been destined to be decided by the Supreme Court.
A different federal appeals court had previously ruled against the president in a separate case, and the administration already had asked the nation’s highest court to intervene.
The ruling by the 9th Circuit, though, was both logistically and symbolically important — keeping in place the broadest blockade on Trump’s ban and creating new legal and practical paths for the directive to meet its ultimate demise.
Unlike other courts in the past, the three judges on the 9th Circuit did not dwell on Trump’s public comments, nor did they declare the president had run afoul of the constitution because his intent was to discriminate. Instead, they ruled that Trump’s travel ban lacked a sufficient national security or other justification that would make it legal, and that violated immigration law.
They offered no opinion on whether the ban was constitutional.
“There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests,” the judges wrote. “These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.”
A Justice Department spokesman said officials were preparing a response.
Neal Katyal, one of the lawyers representing those challenging the ban, said on Twitter that the decision was a “complete win” and noted it was different than previous victories in other cases.
While the U.S. Court of Appeals for the 4th Circuit already had upheld a separate freeze on Trump’s ban, that freeze did not apply to the portion of Trump’s order dealing with refugees. The 9th Circuit was considering a freeze that did, and they concluded Trump had not provided sufficient justification to either temporarily suspend refugee admission or lower the refugee cap for fiscal 2017 to 50,000.
The opinion also clarified that the administration could conduct an internal review to assess vetting procedures.
That could be construed as a victory for Trump: The appeals court said a federal judge in Hawaii was wrong to restrict his administration from conducting such a review. But it also forces the Supreme Court to act quickly if the travel ban is to be salvaged.
That is because the measure is supposed to be temporary — barring the issuance of new visas to residents of six Muslim majority countries for 90 days and suspending the U.S. refugee program for 120 days so officials could review vetting procedures. The Justice Department had argued that they felt blocked from conducting such a review by the Hawaii judge, meaning the clock had essentially stopped.
That clock will presumably now run again, though whether it will start from 90 or something short of that remains unclear. With a Supreme Court recess looming, the ban could expire before the justices reach a decision — unless they grant the Justice Department’s request to stay the injunctions on the ban.
Trump seemed to suggest on Twitter recently, though, that he viewed the measure not as a temporary one.
“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” he wrote. Trump’s own press secretary had previously disputed calling the measure a ban, and the Justice Department has sought in court to characterize it as a “temporary pause.”
The 9th Circuit opinion was written by judges Michael Daly Hawkins, Ronald M. Gould and Richard A. Paez, all appointed by President Bill Clinton. The judges heard arguments in the case last month and focused much of their questioning on the president’s campaign trail and other public comments, which other judges have cited as evidence the president meant to discriminate against Muslims in imposing a ban.
President Trump earlier this month doubled down on some of those comments, deriding the revised travel ban as a “watered down” version of the first and calling the new measure “politically correct.” Legal analysts said that might ultimately hurt his case.
In their ruling, though, the 9th Circuit judges criticized the Trump administration not for its public opining, but for its lack of a real justification for the directive.
The latest version of the ban — which Trump signed after revoking an order that banned residents of seven Muslim-majority countries — describes conditions in the countries affected and says that more than 300 people who entered the country as refugees were the subject of active counterterrorism investigations.
The judges noted that a Department of Homeland Security report concluded citizenship was an “unreliable” threat indicator, and most foreign-born extremists are radicalized years after coming to the U.S. The judges said the president had broad authority to set immigration policy, but it was “not unlimited.”
“In conclusion, the Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the judges wrote. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.”
The 9th Circuit was the court that upheld the freeze on Trump’s first travel ban, and it has since become a focus of the president’s ire.
When U.S. District Judge William Orrick blocked his executive order on stripping federal funding from sanctuary cities, Trump incorrectly attributed the decision to the 9th Circuit as he wrote on Twitter: “First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities — both ridiculous rulings. See you in the Supreme Court!” Orrick is a lower-court judge whose rulings would be reviewed by the 9th Circuit.
Trump then wrote that the circuit had a “terrible record of being overturned” — a claim that is highly debatable — and he said later that he had “absolutely” considered breaking up the court.