The nation erupted into protest last month when Trump signed an executive order banning visa holders and refugees traveling from seven Muslim nations.
Supporters view the ban as a necessary tactic in fighting terrorism, but opponents argue that it violates equal-protection and due process rights and defies the First Amendment’s prohibition of favoring one religion over another.
As I wrote last week, the Justice Department filed an appeal after a Seattle judge issued a temporary nationwide restraining order on the travel ban. This week, the US Court of Appeals for the 9th Circuit unanimously voted to reject Trump’s request to reinstate the travel ban.
The San Francisco-based court decided that the restraining order against the ban would remain in effect while a federal judge reviews a lawsuit on the policy.
“We hold that the 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,” stated the court.
The three-judge panel “forcefully asserted the judiciary’s independent authority to act as a check on executive power,” reports The Hill.
The hearing, which focused on whether the travel ban should stay in effect while courts consider the policy’s lawfulness, involved Jimmy Carter appointee William C. Canby, Barack Obama appointee Michelle T. Friedland, and George W. Bush appointee Richard R. Clifton.
The court’s decision means that refugees and visa holders from the seven Muslim nations specified in the Jan. 27th order will be allowed to enter the US under normal procedures.
The judges delivered a scathing rebuke of Trump’s arguments alongside the ruling, insisting that the ban would cause “irreparable injury” if left intact and noting that the administration had failed to provide evidence that any illegal immigrants from the seven nations named in the ban had been involved in a terrorist attack in the US.
The executive action “runs contrary to the fundamental structure of our constitutional democracy,” wrote the judges. “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. We disagree.”
Justice Department lawyer August Flentje agues that President Trump’s opinion alone should be enough to justify the ban. Blocking the order “overrides the President’s national-security judgment about the level of risk,” he said.
Arkansas Senator Tom Cotton (R) slammed the 9th Circuit as the “most notoriously left-wing court” in the nation. “No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president,” he said.
Legal experts believe the case will be appealed to the Supreme Court, which remains one judge short following the surprise death of Antonin Scalia last February. A 4-4 tie would leave the 9th Circuit’s ruling in place.