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Appeals Court Refuses to Reinstate President Trump’s Travel Ban

Variety logo Variety 2/9/2017 Ted Johnson
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An appeals court ruled against reinstating President Donald Trump’s travel and immigration ban.

A three-judge panel of the 9th Circuit Court of Appeals ruled unanimously that the government had “not shown a likelihood of success on the merits of it appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and therefore we deny this emergency motion for a stay.” The question before the judges was on whether Trump’s executive order, issued last month, should be put on hold while the weighty issues of its constitutionality are considered.

Trump’s travel ban had been challenged by attorneys general from the state of Washington and Minnesota, and dozens of tech companies, including Amazon, Google, and Netflix.

The appellate judges considering the case were Michelle Friedland, an appointee of President Barack Obama; Richard Clifton, an appointee of President George W. Bush; and William Canby, an appointee of President Jimmy Carter.

A district court judge granted a temporary restraining order last week that put Trump’s executive order on hold nationwide. The Trump administration appealed the district court’s decision.

“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Trump tweeted in reaction to the ruling.

Trump’s order temporarily restricted entry into the United States from seven Muslim-majority countries, and halted the flow of refugees into the U.S. for 120 days.

Earlier in the week, at a one-hour hearing before the 9th Circuit, Noah Purcell, attorney for Washington state, argued that reinstating it would harm the state, separate families, and prevent students and faculty from entering the country.

August Flentje, representing the federal government, argued that Judge James Robart’s temporary restraining order was an “extraordinary” action in that it enjoined a presidential national security decision “based on some newspaper articles.”

Technically, the 9th Circuit was not considering the merits of the case — whether Trump’s order was a constitutional violation in singling out Muslim-majority countries. The executive order restricted travel from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and suspends entry indefinitely of all Syrian refugees.

But the motivations behind Trump’s order were brought up at Tuesday’s hearing.

The judges noted that Washington state and Minnesota, in challenging Trump’s executive order, had presented evidence in support of their argument that the president intended to disfavor Muslims. The states cited Trump’s campaign statements about his intent to implement a “Muslim ban.”

“The States’ claims raise serious allegations and present significant constitutional questions,” the judges said in the ruling.

The judges declined to limit the scope of the temporary restraining order. They noted that the federal government had offered 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 much not review its decision at all. We disagree…”

In their ruling, the 9th Circuit judges also rejected the administration’s claim that the president’s decisions about immigration policy are “unreviewable.”

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

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