Setback for Trump as US appeal court refuses to reinstate travel ban
NEW YORK – A US appeal court’s refusal to reinstate a temporary travel ban on refugees and citizens from seven Muslim-majority countries is a setback for President Donald Trump, but the government plans to fight back on multiple legal fronts.
The administration will continue to defend the executive order – both in the case that produced Thursday’s ruling and possibly at the Supreme Court – and in more than a dozen additional lawsuits now moving through the U.S. court system.
“SEE YOU IN COURT,” Trump said in a Twitter post on Thursday after the ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco, which upheld a lower court’s suspension of his ban.
The Republican president, who has repeatedly expressed frustration with the week-old court-mandated suspension, tweeted on Friday that the decision was “disgraceful.”
Trump’s Jan. 27 order, which he has called a national security measure to head off attacks by Islamist militants, barred people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering for 90 days and all refugees for 120 days, except refugees from Syria, who are banned indefinitely.
Thursday’s court decision related only to whether to maintain the decision by U.S. District Judge James Robart in Seattle to suspend the order, and did not resolve the lawsuit against the ban brought by the states of Washington and Minnesota. Those states have argued the ban violated constitutional protections against religious discrimination.
The government has 14 days to ask the 9th Circuit to have a larger panel of judges review the decision “en banc,” or to appeal directly to the U.S. Supreme Court, which will likely determine the case’s final outcome.
In condemning the decision, Trump on Friday cited a security blog, Lawfare, as noting the panel had not cited the statute underpinning his order, a president’s power to bar or restrict foreigners from entering the country if they would harm US interests.
However, the Lawfare article added that the appeals court was right to leave the suspension of the ban in place, as “there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks.”
The travel ban, the most contentious action Trump has taken since he was sworn in on Jan. 20, sparked protests and chaos at U.S. and overseas airports on the weekend after it was issued, as well as legal challenges. The number of pending cases increases the likelihood that the Supreme Court will ultimately have to decide the fate of the policy.
“Currently the front-running case is in Washington (state) and all eyes are on that case, but there a lot of other cases back-stopping that case and ready to step in if the order were to be reinstated,” said Melissa Keaney, a staff attorney with National Immigration Law Center.
On Friday, a federal court in Virginia will hold a hearing on a request for a preliminary injunction on aspects of the ban in a case brought by the state of Virginia on behalf of legal permanent residents detained at Dulles International Airport or denied entry after the ban went into effect.
Some of the cases were filed on behalf of travelers from the countries affected by the ban, who were detained at U.S. airports upon arriving in the country.
Others have been filed by states, civil liberties groups and refugee resettlement agencies with companies and non-profit organizations joining in with supporting briefs.
The American Civil Liberties Union filed a suit on behalf of all the affected people who were in transit at the time the ban took effect or who were detained on arrival in the country, including two Iraqis with connections to the U.S. military.
A district judge in Brooklyn issued a nationwide emergency order, which is still in place, preventing the removal of such travelers.
Federal District Judge Nathaniel Gorton in Boston ruled very differently, upholding Trump’s order in a case originally brought on behalf of two Iranian permanent residents of the United States who were detained on arriving in Boston.
There are now cases moving through 11 of the 13 U.S. appeals court circuits. And that does not include many additional habeas petitions, or challenges to detention, filed on behalf of individual people detained at airports after the ban, the majority of which would have been dropped after people were released.
The ACLU is involved in at least a dozen of the cases but says that the litigation has been moving too quickly to coordinate nationally.
“I don’t see anyone stopping to move forward with their own cases until there is a definitive resolution,” said Lee Gelernt, an ACLU attorney handling the Brooklyn suit.
“That would mean either the Supreme Court rules on the issue, or the administration decides to change the executive order or the government decides not to appeal if there is a nationwide ruling against it,” Gelernt said.
Jay Holland, an attorney with Joseph Greenwald & Laake who has litigated cases involving civil rights issues, said he expected the issue to move quickly to the country’s highest court.
The nine-member Supreme Court is currently ideologically split, with four liberal justices and four conservatives, pending Senate confirmation of Trump’s conservative nominee, Neil Gorsuch, to the bench. –Reuters