(CN) – The Ninth Circuit on Monday became the second federal appeals court to uphold a stay of President Donald Trump’s revised travel ban, even as he presses the Supreme Court to reinstate it.

Monday’s decision follows a May 25 ruling by the Fourth Circuit that concluded Trump intended to discriminate against Muslims from the six countries he targeted in his executive order.

The administration on June 1 asked the U.S. Supreme Court to let the ban take effect while the justices decide whether to review the Fourth Circuit ruling.

The three-judge Ninth Circuit panel ruled that Trump exceeded the scope of his authority in issuing the revised travel ban and largely upheld a ruling in Hawaii federal court that prevented the implementation of a ban on all travelers from six Muslim-majority countries.

“Immigration, even for the President, is not a one-person show,” the 86-page opinion states. “The President must make a sufficient finding that the entry of these classes of people would be ‘detrimental to the interests of the United States.’”

The ruling marks the second defeat for the Trump administration in the Ninth Circuit, with both decisions focusing on the presence of unconstitutional religious discrimination against Muslims embedded in each executive order. The first one was issued a week after Trump assumed office and a second, revised travel ban came in early March.

In the first case, the state of Washington sued the Trump administration, saying the ban was a thinly veiled attempt at harming Muslims. U.S. District Court Judge James Robart granted Washington a temporary restraining order, preventing implementation of the ban. The Ninth Circuit refused in February to reinstate the first travel ban.

Rather than appealing, the Trump administration revised the travel ban in a new executive order issued March 6.

This time around, Hawaii sued and U.S. District Court Judge Derrick Watson granted a temporary restraining order for similar reasons.

After Watson’s ruling, U.S. Attorney General Jeff Sessions criticized it by saying he was “amazed that a judge sitting on an island in the Pacific can issue an order that stops the President of the United States from what appears to be clearly his statutory and constitutional power.”

Monday’s Ninth Circuit ruling will most likely be appealed to the Supreme Court, which is already weighing whether to take up the Fourth Circuit appeal. </s> Several legal experts who weighed in on the U.S. 9th Circuit Court of Appeals decision to not order a reinstatement of President Trump's travel ban said they thought the administration had slim chances if it appealed to the U.S. Supreme Court.

UC Irvine Law School dean Erwin Chemerinsky said it was difficult to predict whether the Supreme Court would review the decision.

“They don’t want a 4-4 split, but they really like having the last word on high-profile cases,” the constitutional law expert said. 

 

 John Yoo, a law professor at UC Berkeley who worked for President George W. Bush’s administration and helped write a memo justifying torture of terrorism suspects, said the Supreme Court was unlikely to agree to review the decision.

The inclusion of green-card holders in the travel ban doomed it legally, Yoo said, and the Supreme Court rarely agrees to hear such emergency appeals in any case.

Jessica Levinson, a law professor at Loyola Law School in Los Angeles, said she thought the Supreme Court would take up the question of whether to reinstate the travel ban.

"This is probably going to the Supreme Court, but I don't think it's going anywhere good for Donald Trump — even if the Supreme Court rules along party lines and is deadlocked, because the lower court's decision would stand."

If the Supreme Court did not take up the case or took it and was split in its ruling, the decision of the 9th Circuit Court would stand.

If it did not go to directly to the Supreme Court, the Trump administration could also ask the full 9th Circuit to review its request, said Margo Schlanger, a law professor at the University of Michigan who was the head of civil rights for the Department of Homeland Security under President Obama.

But with a unanimous decision from the three judges who issued Thursday's opinion, Trump's chances are not good in what's known as one of the country's most reliably liberal appeals courts. </s> A three-judge Appeals Court panel issued a unanimous ruling Thursday afternoon rejecting the Trump administration’s claim of “unreviewable” presidential power and sustaining a judicial order that bars enforcement of Trump’s temporary ban on travel from seven Muslim-majority countries, as well as his temporary ban on the entry of refugees from any country.

The 3-0 ruling was signed by judges William Canby, appointed by Jimmy Carter in 1980; Richard Clifton, appointed by George W. Bush in 2001; and Michelle Friedland, appointed by Barack Obama in 2013. They denied a Trump administration request for an immediate stay of the temporary restraining order issued February 3 by Federal District Judge James Robart in Seattle, Washington.

The panel declared: “[T]he Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”

The 29-page decision subjects the Trump administration’s legal position and factual claims to withering criticism. The judges declare that the government presented no evidence that halting the travel ban would endanger national security or American lives. By contrast, the ruling held that the states of Washington and Minnesota, which brought suit against the ban, demonstrated widespread and irreparable damage on their citizens and institutions if the travel ban were reinstated.

The appeals court decision by no means ends the conflict over the travel ban. From a legal standpoint, it was not a final determination on the merits of the case, but merely continued the suspension of the travel ban while the lawsuit is more fully adjudicated.

President Trump responded to the ruling within minutes, tweeting, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” The Department of Justice, under newly sworn-in Attorney General Jeff Sessions, an adamant opponent of immigrants, whether documented or undocumented, said in a statement that it was “reviewing the decision and considering its options.”

One possible step would be a Trump administration appeal of Thursday’s decision to the US Supreme Court. However, the court has lacked a ninth justice for a year, since the death of Justice Antonin Scalia, and has had frequent 4-4 splits during that time. An evenly divided court would leave the denial of a stay by the Ninth Circuit intact.

Some right-wing legal commentators urged Trump to withdraw the executive order, which suffers from numerous technical defects pointed out in the court decision, and reissue it after consultation with congressional leaders and the newly installed members of the Trump cabinet, including Sessions. This step could delay Supreme Court review until after the confirmation of Trump’s nominee to fill the high court vacancy, Neil Gorsuch, in the expectation that he would provide a fifth and deciding vote for the government.

A third possibility, for which Trump seemed to lay the basis in a series of increasingly vituperative statements during the week, would be to directly defy the court ruling, escalating the conflict within the US political system to the level of a constitutional crisis. Certainly, Trump’s declaration that “If something happens blame him [Judge Robart] and the court system,” should be taken as a warning. The White House is prepared to use any terrorist attack that occurs as a pretext to breach constitutional norms and establish an authoritarian regime backed by the military and police.

The US ruling elite is deeply divided over what course of action to take. Speaking for those sections of the military-intelligence apparatus hostile to Trump, former Director of National Intelligence James Clapper appeared on CNN only hours before the court ruling, declaring that he knew of no terrorist threat that could justify the travel ban, and warning that the ban had damaged relationships with US allies in the Middle East and would serve as a recruiting tool for Muslim extremist groups.

Even Trump’s own nominee to the Supreme Court, Gorsuch, voiced opposition to Trump’s tweets lambasting the “so-called judge” and suggesting the appeals court hearing Tuesday was “disgraceful.” Gorsuch is himself an appeals court judge, on the Tenth Circuit, and he told a Democratic senator that such attacks on judges were “disheartening” and “demoralizing.”

The intensity of the political conflict, within three weeks of Trump’s inauguration, is reflected in the language of the Appeals Court decision, which systematically eviscerated the arguments made by the Trump administration in legal briefs and in the course of an hour-long oral argument Tuesday.

The three-judge panel found that the district court had the authority to rule on the Executive Order, rejecting the government’s claim that the president has “unreviewable authority to suspend the admission of any class of aliens.” The government was not merely claiming that the political branches should be shown deference by the judiciary on national security issues, they wrote: “Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.”

They added, in language that underscores the implications of Trump’s actions and his administration’s legal argument: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

The ruling cited a series of Supreme Court decisions striking down actions taken by the federal government and justified in the name of “national security.” These include the 2008 Boumediene decision, in which the court found, over the objections of the Bush administration, that prisoners held in Guantanamo Bay had the right to seek a writ of habeas corpus and gain judicial review of their continued detention . The panel noted that at this stage in the legal proceeding, the burden was on the federal government to show that it was likely to succeed on the merits of its case and that it would suffer irreparable injury if the travel ban continued to be blocked. The government failed on both grounds, the three judges decided.

The ruling laid the most stress on the argument by the states of Washington and Minnesota that the travel ban was a gross violation of the constitutional requirement of due process, which applies not only to American citizens, but also to legal permanent residents, and to those without legal papers who are on American soil.

Even refugees seeking entry into the United States have rights under “procedures provided by federal statute,” which could not be overridden by the president. The panel rejected the claim of the Trump administration “that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.”

The judges treated with some contempt the efforts by the Trump administration to rectify the obviously unconstitutional denial of rights to legal permanent residents. The inclusion of these green-card holders under the executive order was demanded by Trump’s fascistic chief adviser, Stephen K. Bannon, who overrode objections from Department of Homeland Security officials. After a series of unfavorable court rulings, the White House sought to “reinterpret” the order on the fly, with a statement by Chief of Staff Reince Priebus and further directives to the DHS. Finally, White House counsel Donald F. McGahn issued “Authoritative Guidance” that the order did not apply to green-card holders.

The judges wrote: “At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.

“Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. 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 says that claims that the Trump executive order violates the establishment clause of the First Amendment because it was aimed at Muslims should be taken seriously, and it flatly rejects the White House claim that Trump’s intentions can only be inferred from the text of the order—which makes no mention of Muslims—and not from his public statements.

The judges write: “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims… The States’ claims raise serious allegations and present significant constitutional questions.” But they decline to pronounce further on the issue, pending actual discussion of this issue in further proceedings. </s> WASHINGTON, DC – The Justice Department on Saturday moved to appeal a decision that temporarily halted enforcement of President Donald Trump’s travel ban.

The appeal concerns a late Friday decision by a US district court that halted the enforcement of Trump’s executive order. Trump’s policy banned travel to the US from seven Muslim-majority countries for 90 days, suspended all refugee entry to the US for 120 days and indefinitely suspended entry for Syrian refugees.

A notice of appeal was sent Saturday night to the US district court, where Judge James Robart, a George W. Bush appointee, presides in Seattle.

The Justice Department is expected to file its brief laying out its legal argument later Saturday night to the Ninth Circuit Court of Appeals, which will hear the appeal.

Hours after Robart’s ruling, the Department of Homeland Security announced it had suspended all actions to implement the immigration order and would resume standard inspections of travelers as it did prior to the signing of the travel ban. But it urged the Justice Department to challenge the ruling “at the earliest possible time.”

The three judges who will likely hear the appeal — assuming no one has to step aside over any conflicts — are: Judge William Canby, who was appointed by President Jimmy Carter; Richard Clifton, who was appointed by Bush; and Michelle Friedland, a President Barack Obama appointee.

Robart, ruling in a lawsuit brought by the attorneys general of Washington state and Minnesota who sought to stop the order, said the states “have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the executive order. ”

He said the order adversely affects residents in areas of education, employment, education and freedom to travel. </s> A federal appeals court early Sunday morning denied the US government’s emergency request to resume President Donald Trump’s travel ban.

The Ninth Circuit Court of Appeals has asked for both sides to file legal briefs before the court makes its final decision after a federal judge halted the program on Friday.

What this means is that the ruling by US District Court Judge James Robart, who suspended the ban, will remain in place — for now.

The US Justice Department filed an appeal just after midnight Sunday, asking to pause Robart’s sweeping decision that temporarily halted enforcement of several key provisions of Trump’s executive order.

The order bars citizens of seven Muslim-majority countries — Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen — from entering the US for 90 days, all refugees for 120 days and indefinitely halts refugees from Syria.

The Justice Department’s strongly worded court filing lodged a multi-pronged attack on Robart’s decision, emphasizing that halting enforcement of the travel ban “harms the public” and “second-guesses the President’s national security judgment” in the immigration context.

“(Robart’s ruling) contravenes the considered judgment of Congress that the President should have the unreviewable authority to suspend the admission of any class of aliens,” the Justice Department wrote in its filing.

“Courts are particularly ill-equipped to second-guess the President’s prospective judgment about future risks. Unlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process,” the filing said.

Justice Department lawyers further argued that the parties who filed the lawsuit — the attorneys general of Washington state and Minnesota — lack the ability to sue in federal court because their alleged harms are too “speculative.”

Since the federal appeals court rejected a request to immediately reinstate the travel ban, lawyers for Washington state and Minnesota have until 2:59 a.m. Monday to file legal papers, and the Justice Department lawyers have until 6 p.m. Monday evening to reply. Then a three-judge panel will decide whether to schedule a hearing or issue a ruling.

Robart, a Bush appointee sitting in the Western District of Washington, ruled Friday that the states that filed the lawsuit “have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the executive order.”

Robart explained that Trump’s executive order adversely affects “residents in areas of employment, education, business, family relations, and freedom to travel.”

When Trump was asked at a gala in Florida on Saturday whether he was confident his administration would prevail in the appeal, he replied, “We’ll win. For the safety of the country, we’ll win.”

On Saturday, the Department of Homeland Security announced it had suspended “any and all” actions to implement the immigration order and would resume standard inspections of travelers, as it did prior to the signing of the travel ban.

After the Ninth Circuit’s decision on Sunday, a US Embassy official in Baghdad said that holders of valid US visas, including Iraqi Special Immigrant Visas, would be allowed to travel to the United States.

“The US Government has determined that it is in the national interest to allow Iraqi Special Immigrant Visa (SIV) holders to continue to travel to the United States,” the embassy official said, adding that the embassy had been in contact with the SIV applicants. </s> A second United States appeals court on Monday ruled against President Donald Trump’s temporary travel ban on people entering the United States from six Muslim-majority countries, largely upholding a lower court’s decision.

The 9th U.S. Circuit Court of Appeals in San Francisco reviewed a March ruling by a Hawaii-based federal judge that blocked parts of Trump’s order.

The ruling came after a separate court, the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, on May 25 upheld a Maryland judge’s ruling blocking parts of the order.

The Trump administration on June 1 asked the U.S. Supreme Court to block the Hawaii and Richmond rulings and revive the ban.

Hawaii Federal Judge Derrick Watson blocked a March 6 executive order barring travellers from Libya, Iran, Somalia, Sudan, Syria and Yemen for 90 days while the government put in place stricter visa screening.

Watson also blocked a directive that suspended the entry of refugee applicants for 120 days, as well as other instructions for the government to study tougher vetting procedures.

The 9th Circuit on Monday upheld the block on Trump’s travel ban and a cap on refugees. However, the appeals court vacated part of the injunction in order to allow the government to conduct internal reviews on vetting. </s> The Ninth Circuit Court of Appeals has just released a unanimous ruling denying President Trump’s motion for a stay of the lower court injunction against President Trump’s Executive Order temporarily suspending Visa’s from seven nations of concern:

We are looking for the full ruling document. UPDATE: FULL RULING pdf Below

President Trump has two options on this specific XO, request direct appeal on this decision to Supreme Court Justice John Brennan who oversees the Ninth Circuit, or take the appeal to the full Supreme Court.

Additionally, President Trump may choose to rewrite the initial executive order and clarify the purpose and intent to avoid judicial challenge. </s> Given the president’s (and his allies’) serial bashing of the Ninth Circuit Court of Appeals as a godless liberal bastion of judicial activism, it probably raised few eyebrows that a three-judge panel of that Court unanimously upheld a Hawaii federal district judge’s injunction against enforcement of Trump’s revised travel ban on Monday.

But the Ninth Circuit decision differed in two significant ways from the Fourth Circuit’s superficially similar ruling on May 25. The judges did not choose to maintain an injunction against the ban on the First Amendment Establishment Clause grounds emphasized by the Fourth Circuit — an argument that puts heavy emphasis in a controversial way on Team Trump’s comments about a “Muslim ban” before the election. Instead, they opted to focus on the claim that the administration did not make the sort of factual findings about national security threats allegedly posed by the people affected that the congressional statute authorizing such actions requires.

Perhaps even more important for purposes of the ultimate disposal of this case, the Ninth Circuit struck down the district court judge’s injunction against internal government operations associated with a permanent regime of enhanced vetting. Since the decisions in the Fourth Circuit did not touch on this issue, the administration is presumably empowered to move ahead on that front based on the Ninth Circuit decision.

So, at this point, the Supreme Court can choose between punting and basically telling the administration to forget about what was supposed to be a temporary travel ban, or deciding the case on one or both of the complicated issues cited by the Fourth and Ninth Circuits. Either way, the underlying fight over the president’s desire to crack down on people coming into the country who happen to be Muslims will go on, in the courts and elsewhere. </s> SAN FRANCISCO — A U.S. federal appeals court refused Thursday to reinstate President Donald Trump’s ban on travellers from seven predominantly Muslim nations, unanimously rejecting the administration’s claim of presidential authority and questioning its motives.

The panel of three judges from the San Francisco-based 9th U.S. Circuit Court of Appeals declined to block a lower-court ruling that suspended the ban and allowed previously barred travellers to enter the U.S.

The court battle is far from over. The lower court still must debate the merits of the ban, and an appeal to the U.S. Supreme Court seems likely. That could put the decision in the hands of a divided court that has a vacancy. Trump’s nominee, Neil Gorsuch, could not be confirmed in time to take part in any consideration of the ban.

Moments after the ruling was released, Trump tweeted, “SEE YOU IN COURT,” adding that “THE SECURITY OF OUR NATION IS AT STAKE!”

In response, Washington Gov. Jay Inslee, a Democrat who leads one of the states that challenged the ban, said: “Mr. President, we just saw you in court, and we beat you.”

The appeals panel said the government presented no evidence to explain the urgent need for the executive order to take effect immediately. The judges noted compelling public interests on both sides.

“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.”

The court rejected the administration’s claim that it did not have the authority to review the president’s executive order.

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the court said.

While they did not rule on the actual merits of the states’ argument that the travel ban was intended to target Muslims, the judges rejected the government’s claim that the court should not consider statements by Trump or his advisers about wishing to enact such a ban. Considering those remarks, the judges said, falls within well-established legal precedent.

The Justice Department said that it was “reviewing the decision and considering its options.” It’s the first day on the job for new Attorney General Jeff Sessions, who was sworn in at the White House earlier Thursday by Vice-President Mike Pence.

Last week, U.S. District Judge James Robart in Seattle issued a temporary restraining order halting the ban after Washington state and Minnesota sued. The ban temporarily suspended the nation’s refugee program and immigration from countries that have raised terrorism concerns.

Justice Department lawyers appealed to the 9th Circuit, arguing that the president has the constitutional power to restrict entry to the United States and that the courts cannot second-guess his determination that such a step was needed to prevent terrorism.

The states said Trump’s travel ban harmed individuals, businesses and universities. Citing Trump’s campaign promise to stop Muslims from entering the U.S., they said the ban unconstitutionally blocked entry to people based on religion.

The appeals court sided with the states on every issue save one: the argument that the lower court’s temporary restraining order could not be appealed. While under 9th Circuit precedent such orders are not typically reviewable, the panel ruled that due to the intense public interest at stake and the uncertainty of how long it would take to obtain a further ruling from the lower court, it was appropriate to consider the federal government’s appeal.

Josh Blackman, a professor at South Texas College of Law in Houston, said the “million-dollar question” is whether the Trump administration would appeal to the Supreme Court.

That could run the risk of having only eight justices to hear the case, which could produce a tie and leave the lower-court ruling in place.

“There’s a distinct risk in moving this too quickly,” Blackman said. “But we’re not in a normal time, and Donald Trump is very rash. He may trump, pardon the figure of speech, the normal rule.”

Jessica Levinson, a professor at Loyola Law School, said the ruling was thoughtful and supported by a great deal of legal precedent. More important, though, it was unanimous despite the having judges who were appointed by Democratic and Republican presidents.

“It’s a very important message that judges are not just politicians in robes and not just political hacks,” Levinson said. “The role of the judge is to transcend politics. That’s why they’re appointed for life, so they don’t worry about what’s popular. They worry about what’s legally correct.”

Both sides faced tough questioning during an hour of arguments Tuesday. The judges hammered away at the administration’s claim that the ban was motivated by terrorism fears, but they also challenged the states’ argument that it targeted Muslims.

“I have trouble understanding why we’re supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected,” Judge Richard Clifton, a George W. Bush nominee, asked an attorney representing Washington state and Minnesota.

Only 15% of the world’s Muslims are affected by the executive order, the judge said, citing his own calculations.

“Has the government pointed to any evidence connecting these countries to terrorism?” Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked the Justice Department attorney.

After the ban was put on hold, the State Department quickly said people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — with valid visas could travel to the U.S. The decision led to tearful reunions at airports round the country.

The ban was set to expire in 90 days, meaning it could run its course before the Supreme Court would take up the issue.
The Trump administration decides to not immediately appeal the Ninth Circuit's decision, which continues the travel ban suspension, to the Supreme Court.