A three-judge panel of the Ninth Circuit Court of Appeals ruled unanimously Thursday afternoon to deny the Trump administration's request for an emergency stay of a restraining order issued last Friday by a federal judge in Washington State. The ruling sets the stage for an immediate appeal to the Supreme Court, which could end up deadlocked with its current 4-4 split unless Chief Justice Roberts is able to get a unanimous decision affirming the power of the judiciary branch.
Meanwhile, free travel for those with visas and green cards will continue from seven nations that Trump had sought to halt the flow of travel from. The President and his team continue to contend that national security is at stake if he doesn't get his way, despite there being no concrete evidence provided for this.
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!— Donald J. Trump (@realDonaldTrump) February 9, 2017
As the decision states, "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."
The decision, which is sure to further rankle the President, confirms that the states of Washington and Minnesota, which joined as a party to the case, have both standing to block the President's order, and that they can claim irreparable harms, and they further ruled against the administration's claim that such an order should not be reviewable by the courts.
"There is no precedent to support this claimed unreviewability," the 29-page decision reads, "which runs contrary to the fundamental structure of our constitutional democracy. In short, 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."
It's unclear which of the three judges penned the opinion, however Judge Michelle Friedland as the junior of the three on the panel and the only one not currently under senior status on the court, likely had a considerable hand in the document. Judge Friedland had telegraphed support for the states' case, and a lack of support for the Trump administration's request for an emergency stay, during Tuesday's hearing, while Judge Richard Clifton sounded somewhat sympathetic to the idea that a president could issue temporary or permanent immigration restrictions based on country. With no dissenting opinion published, it appears this was a unanimous decision, with Judge William C. Canby joining as well.
There was some questioning during Tuesday's hearing about whether they were actually adjudicating a request for a preliminary injunction, rather than a temporary restraining order, and the ruling addresses that as well, saying, "We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction."
As to the question of harm, the court sided with the states which they said had provided "ample" evidence to suggest such harm, while the administration has offered none. "When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms."
The ACLU of Northern California issued a statement celebrating the ruling Thursday. "If the court had granted the Trump administration’s request, U.S. citizens, residents, and their family members here and across the world would have once again been facing chaos and uncertainty," said Executive Director Abdi Soltani. "As the Attorneys General for Washington and Minnesota move forward with their case, the ACLU will continue to fight this discriminatory Muslim ban and stand against the federal government’s divisive and unconstitutional policies. The president’s Executive Order dishonors our values as a nation and is wreaking havoc in the lives of everyday people."
President Trump has spent the last couple of days expressing his general disapproval of the courts, seemingly all courts and all judges, which led to the extraordinary statement Wednesday by his current Supreme Court nominee Neil Gorsuch referring to Trump's attacks as "demoralizing" and "disheartening." Trump then tried to pass off these comments as "misrepresented."
Today's ruling is sure to add fuel to the fire of an ongoing Republican effort to split up the Ninth Circuit, as Fox News was just discussing today. Arizona Senators Jeff Flake and John McCain introduced a bill in January that would carve up the Ninth Circuit into two court circuits, creating a new Twelfth Circuit that would include Nevada, Washington, Idaho, Montana, Arizona and Alaska. That would leave the Ninth Circuit as representing only California, Oregon, and Hawaii, as well as Guam and the Northern Mariana Islands. They argue that when the circuit was created in 1891 only four percent of the nation's population lived in the western part of the country, and now that figure is 20 percent. And Flake argues that the court takes too long to decide cases as a result, sometimes as long as 15 months.
Not this time!