Summary
- Donald Trump’s travel ban remains suspended after government lawyers failed to convince a court that it should be reinstated.
- Three judges at the ninth US circuit court of appeals ruled unanimously that a nationwide temporary restraining order (TRO) imposed last week must stay in place, meaning the executive order banning travellers from seven Muslim-majority countries and refugee entries cannot be enforced.
- President Trump reacted angrily to the court decision, branding it “political” and declaring:
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
- The judges said the government had failed to show an “urgent need” for the travel ban to be reinstated, noting that it had provided “no evidence” that any travellers from the countries targeted by the ban had committed terror offences in the US.
- The court – which was ruling only on whether the travel ban should be reinstated or not – made no finding on claims by the states of Washington and Minnesota, which brought the case, that it was in effect a Muslim ban, based on religious discrimination. But the judges said future hearings could take into account earlier statements made by Trump in which he had pledged such a ban.
- The government claim that a national security order from the president was “unreviewable” was dismissed by the judges:
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
- The government could challenge the appeals court decision or file an emergency appeal with the supreme court. Otherwise the hearing on the longterm future of the travel ban itself comes back to the San Francisco court in March.
Read more
- Travel ban hits major setback after judges uphold temporary restraining order.
- Analysis: decision suggests supreme court would be tough to convince.
Meanwhile
- National security adviser Mike Flynn discussed election hacking sanctions with Russia, the Washington Post reported.
- Trump finally made a call to President Xi Jinping and agreed to support the ‘One China’ policy.
- Press secretary Sean Spicer faced tough questioning over Trump’s capricious tweeting.
- And the White House ‘counselled’ Kellyanne Conway for promoting Ivanka Trump products after department store Nordstrom decided to drop the president’s daughter’s brand:
I’m going to give a free commercial here. Go buy it today, everybody. You can find it online.
With that we’re going to wrap up our coverage for the day. Thanks for reading.
Updated
What the judges said
Here are the key areas in which the three judges said they could not back the arguments of the federal government.
‘Unreviewable’ claim ‘contrary to constitutional democracy’
- In a strongly worded ruling – read it in full here – the judges rejected the justice department argument that the president’s national security orders were “unreviewable”:
There is no precedent to support this claimed unreviewability, 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.
No evidence of terror threat
- The judges said the government had failed to make a case that there was an urgent need to block travellers from entering the US:
Although we agree that ‘the government’s interest in combating terrorism is an urgent objective of the highest order’ … the government has done little more than reiterate that fact …
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.
‘Shifting interpretations of executive order’
- They were scathing on the confusion that surrounded the rights of lawful permanent residents caught up in the travel ban:
We cannot rely upon the government’s contention that the executive order no longer applies to lawful permanent residents …
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.
‘Serious allegations’ of religious discrimination
- The judges did not make a ruling on the argument by the states that the executive order discriminates on religious grounds and is effectively a “Muslim ban”. But they said previous comments by Trump and his team could be taken into account in future hearings on whether the travel ban “was motivated by a discriminatory purpose”:
The states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the executive order was intended to be that ban …
The states’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
No explanation of ‘urgent need’ to reinstate ban
- The judges said they did not see “an urgent need” for the ban on travellers from seven Muslim-majority countries to be reinstated:
Although the government points to the fact that congress and the executive identified the seven countries named in the executive order as countries of concern in 2015 and 2016, the government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the executive order to be immediately reinstated.
The federal government’s application to have the temporary restraining order lifted – and the travel ban reinstated – was denied.
Updated
In the hearing on Tuesday, August Flentje, the department of lawyer acting on behalf of the federal government, argued that the executive order issued by the president was not reviewable.
The judges in their ruling roundly rejected this:
The government contends that the district court lacked authority to enjoin enforcement of the executive order because the president has ‘unreviewable authority to suspend the admission of any class of aliens’ …
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 …
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
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White House national security adviser Michael Flynn privately discussed US sanctions against Russia with Moscow’s ambassador to the United States during the month before President Donald Trump took office, the Washington Post reported on Thursday.
Citing nine unnamed current and former US officials, the Post said some senior US officials interpreted the contacts as a “potentially illegal” signal to Russia that it could expect a reprieve from sanctions imposed by the Obama administration in December.
Reuters reported last month, citing three sources familiar with the matter, that Flynn had held five phone calls with Russian ambassador Sergei Kislyak on 29 December, the day then-President Barack Obama retaliated for Moscow’s alleged interference in the 2016 US presidential election.
The Post said Flynn on Wednesday denied that he had discussed sanctions with the Russian ambassador, but on Thursday backed away from the denial through a spokesman.
Flynn “indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up”, the Post quoted the spokesman as saying.
Read the full story:
Updated
The Republican National Committee has already picked its side:
We stand with @POTUS. Do you? #9thcircuit
— GOP (@GOP) February 10, 2017
Now it’s using the ruling from the appeals court to garner support for a petition against what it calls “the ultra-liberal 9th circuit court of appeals”. In an email to supporters from “Trump Headquarters”, it writes:
President Trump is fighting to keep the American People safe, but a Federal Court just stood in the way.
But you can do something about it.
In the next 24 hours, we need to show President Trump the American people support his commitment to keeping the American People SAFE.
Sign your name on the official petition to show YOUR support for this critical national security policy. >>
President Trump has called for a temporary restriction on people entering our country from nations compromised by radical Islamic terrorism.
It’s a commonsense, constitutional policy to keep our country safe.
But ever since President Trump signed it into law, the media has gone to extreme lengths to tear it to shreds and lie about it to the American people.
The media doesn’t want you to know that this commonsense policy is supported by a majority of Americans.
But with your help, we’ll gather enough signatures to show them that this national security policy is supported by the PEOPLE.
Sign your name on President Trump’s official petition to show YOUR support. >>
Thanks,
Trump Headquarters
Donald Trump has held his first telephone conversation with the Chinese president, Xi Jinping, since entering the White House, telling the Communist party leader he will not challenge Beijing by upending longstanding US policy towards Taiwan.
In a statement the White House said the leaders of the world’s two largest economies had held a “lengthy” and “extremely cordial” telephone call on Thursday evening in which “numerous topics” were discussed.
“President Trump agreed, at the request of President Xi, to honor our ‘One China’ policy,” the White House said, referring to a diplomatic understanding by which Washington does not challenge China’s claim over Taiwan, a democratically ruled island that Beijing considers a breakaway province.
Following his shock election in November last year, Trump had infuriated and unnerved Beijing by questioning his administration’s commitment to that policy and holding an unprecedented phone conversation with Taiwan’s president, Tsai Ing-wen.
On Tuesday some of the world’s leading China specialists warned that already “precarious” ties between Beijing and Washington could be plunged into a dangerous new era, partly as a result of Trump’s rise to power.
Here’s how the next few days and weeks could pan out for the travel ban.
For now, it can’t be enforced. The nationwide temporary restraining order (TRO) imposed last week by the district court in Seattle has been upheld today, so travelers from the seven Muslim-majority countries named in the executive order are, for now, not banned from entering the US (though pre-existing visa restrictions still apply).
The federal government has 14 days to ask the ninth circuit appeals court to reconsider its decision. It might not fancy its chances there, given the unanimous (per curiam) ruling.
But Trump has indicated, via an angry tweet, that the court fight goes on.
So the government could file an emergency appeal with the US supreme court. Associated Press says this would go to Justice Anthony Kennedy for referral to the rest of the court.
In the meantime – given that today’s ruling relates to the TRO on the travel ban and not on the longterm future (or otherwise) of the travel ban itself – the appeals court has set out a schedule to hear fuller arguments on that. As AP explains:
That prompted some confusion among those watching the case, many of whom expected it to be returned to the Seattle courthouse.
Washington’s lawyer, state solicitor general Noah Purcell, wrote to the Seattle court’s clerk late Thursday to note the state wouldn’t be making an expected court filing because of the new appellate briefing schedule.
Barring an immediate appeal to the supreme court, the government’s opening brief is due 3 March, with the states’ filing due 24 March.
Before the ruling – and the president’s “SEE YOU IN COURT” tweet – White House press secretary got a little testy when questioned by Sirius XM radio reporter Jared Rizzi on why Trump tweets about, for example, his daughter’s fashion line being dropped from a clothing store, but not the Québec City mosque attack:
Trump calls Xi
After we reported yesterday that the Chinese president, Xi Jinping, was still waiting for a phone call from his US counterpart, Trump has picked up the phone to Beijing.
Here’s the readout of the call from the White House:
President Donald J Trump and President Xi Jinping of China had a lengthy telephone conversation on Thursday evening.
The two leaders discussed numerous topics and President Trump agreed, at the request of President Xi, to honor our “one China” policy.
Representatives of the United States and China will engage in discussions and negotiations on various issues of mutual interest.
The phone call between President Trump and President Xi was extremely cordial, and both leaders extended best wishes to the people of each other’s countries. They also extended invitations to meet in their respective countries. President Trump and President Xi look forward to further talks with very successful outcomes.
As the Guardian’s China correspondent Benjamin Haas explains:
“One China” is an arrangement dating back to the 1970s under which countries can maintain formal diplomatic relations with China or Taiwan, but not both.
After the Communists won the Chinese civil war in 1949, defeated Nationalists fled to Taiwan. Both Beijing and Taipei claimed sovereignty over the entirety of China. Taiwan’s official name is the Republic of China.
Until 1971, Taiwan held China’s seat at the United Nations and the following years saw a wave of states switch to recognise the Beijing government. The US formally established relations with China in 1979, but maintains informal ties with Taiwan.
Some insight from Benjamin Wittes, editor in chief of Lawfare, on what the ruling really means:
Are there tea leaves to read in this opinion? There sure are, particularly with respect to the judges’ analysis of the government’s likelihood of prevailing on the merits and its blithe dismissal of the government’s claims of national security necessity on pages 26-27 – a matter on which the per curiam spends only one sentence and one brief footnote.
But it’s worth emphasizing that the grounds on which this order was fought are not the grounds on which the merits fight will happen. Eventually, the court has to confront the clash between a broad delegation of power to the President – a delegation which gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holders – in a context in which judges normally defer to the president, and the incompetent malevolence with which this order was promulgated.
Read the full analysis on the Lawfare blog.
The judges’ decision immediately set off a political firestorm on both sides of the aisle. Donna Brazile, the chair of the Democratic National Committee, celebrated the decision in a statement. “This is a massive blow to the White House. The court upheld that we do not discriminate based on religion. That is what terrorists do, and what terrorists want us to do.”
The Washington state attorney general, Bob Ferguson, agreed: “The bottom line this is a complete victory for the state of Washington.
“We are a nation of laws as I have said … from day one, those laws apply to everyone in our country and that includes the president of the United States.”
In contrast, Republican Senator Tom Cotton from Arkansas railed against the ruling. “No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president. This misguided ruling is from the ninth circuit, the most notoriously left-wing court in America and the most reversed court at the supreme court,” said Cotton in a statement.
Senior White House aide Kellyanne Conway, speaking on Fox News, expressed confidence that the ruling simply represented a bump in the road. “It is an interim ruling and we are fully confident that when we get our day in court and argue it on the merits we will prevail.”
The Washington Post has just published a report claiming that Trump’s national security adviser, General Michael Flynn, did discuss sanctions with Russian ambassador Sergey Kislyak in the month before the inauguration – despite explicit denials by Flynn and vice-president Mike Pence.
It reports:
On Thursday, Flynn, through his spokesman, backed away from the denial. The spokesman said Flynn “indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”
The Washington Post says it had verified the content of the communications – which it says were by text message, by phone and in person:
Nine current and former officials, who were in senior positions at multiple agencies at the time of the calls, spoke on the condition of anonymity to discuss intelligence matters.
All of those officials said Flynn’s references to the election-related sanctions were explicit. Two of those officials went further, saying that Flynn urged Russia not to overreact to the penalties being imposed by President Barack Obama, making clear that the two sides would be in position to review the matter after Trump was sworn in as president.
“Kislyak was left with the impression that the sanctions would be revisited at a later time,” said a former official.
Washington state attorney general Bob Ferguson says the unanimous verdict of the ninth US circuit court of appeals “granted everything we sought”.
Noah Purcell, the solicitor general of Washington state who successfully led the case on Tuesday in court, has been speaking to CNN’s Erin Burnett.
Phoning in his argument to the court while it was broadcast live was, Purcell said, “definitely the strangest argument I have ever had in my life”.
In response to Trump’s SEE YOU IN COURT tweet, Purcell replied:
I was just talking to our attorney general about that and I guess from our perspective is that we see him in court right now and we’ve won both times …
It’s not like it doesn’t count until you get to the supreme court. The judicial system involves many stages …
I really think this is executive order is so out of the ordinary in so many ways, so unsupported by any rational argument on the administration’s part, and I am – I am extremely hopeful about what will happen if this case does go to the US supreme court.
Not to say that I – I don’t in any way mean to put any pressure on anyone about how they should rule … I trust them to apply the law as they have in cases in the past and I think we win under that precedent.
Updated
The American Civil Liberties Union (ACLU) has welcomed the judges’ appeals court ruling. In a statement via Twitter, it said:
The ninth circuit noted that the government had put forth no actual security justification for the Muslim ban.
The ninth circuit victory is a victory for thousands, potentially millions of people who were affected by the Muslim ban.
This is an interim victory. There is more litigation to come. We must not become complacent.
WA [Washington state] v Trump was brought by the state of Washington, and the ACLU submitted an amicus brief urging today’s result.
We have filed multiple challenges to the Muslim ban and will continue to fight for its complete and permanent demise.
In other news, Rosie O’Donnell – who earlier this week said she’d be willing to step up for Saturday Night Live duty as Steve Bannon following Melissa McCarthy’s showstopping turn as Sean Spicer – has changed her Twitter avatar to … herself dressed up as Bannon.
@calvininsf - i am here to serve - alec has trump - melissa has spice - i would need a few days to prepare - so if called - i will be ready
— ROSIE (@Rosie) February 7, 2017
#BannoninChief https://t.co/UVkK2D6byX
— ROSIE (@Rosie) February 7, 2017
And here’s Lori Swanson, attorney general of Minnesota, which brought the case against the travel ban along with Washington state:
A more deliberate approach by the administration could have avoided this litigation.
The executive order was haphazard in its approach and roll-out; not properly vetted by the congress or the federal departments of state, justice, homeland security, or defense; and created needless chaos for children, families, students, physicians, businesses, and travelers.
It should be further noted that the White House has not identified to the court any detainee who posed a risk to national security.
The case to uphold the temporary restraining order was led by two states: Washington and Minnesota.
But 18 other states have filed an amicus brief supporting their action. (They are California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia.)
After today’s ruling, New York attorney general Eric Schneiderman said:
Today’s decision by the ninth circuit is a major victory for the rule of law and the fundamental American principle that no president is above the constitution. As my colleagues and I have argued in courts across the country, President Trump’s executive order is an unconstitutional exercise of authority that unlawfully discriminates against millions of people based on their religion.
Maura Healey, attorney general of Massachusetts, also applauded the decision, calling the travel ban a “reckless and discriminatory executive order”:
I stand with state attorneys general united in our commitment to hold this administration accountable to the laws and the people of this country.
The judges’ ruling, in declining to lift the temporary (but nationwide) restraining order placed on the travel ban, said it did not see “an urgent need” for the ban on travelers from seven Muslim-majority countries to be reinstated:
Although the government points to the fact that congress and the executive identified the seven countries named in the executive order as countries of concern in 2015 and 2016, the government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the executive order to be immediately reinstated.
The government has argued that the ban targets seven countries already singled out for visa restrictions, which is true.
However, the judges have joined those critics who say there is a lack of evidence to say why those existing visa restrictions – already stringent – ought to now be transformed into an outright ban.
So … what now?
Julia Carrie Wong and Alan Yuhas assess what could happen next:
The federal government can now ask the supreme court to review Thursday’s ruling to uphold a temporary restraining order on Donald Trump’s travel ban. But the US ninth circuit court of appeal’s unanimous ruling suggests that the administration will struggle to make a convincing argument.
With one seat vacant on the supreme court, the federal government would have to persuade one of the four liberal-leaning justices to break ranks. In the event of a 4-4 tie, the ninth circuit ruling remains in place.
The supreme court could also sidestep controversy and defer an appeal, leaving the ruling in place as the case works its way through other courts. The Trump administration could choose to build its case in district court but a tweet sent by the president not long after the order was released, suggested he would take a request to the eight-justice supreme court as soon as possible.
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
The ninth circuit’s ruling applies only to the question of whether or not the earlier ruling by district judge James Robart, in Seattle, was correct in issuing the temporary restraining order.
The separate legal proceedings to determine whether or not the travel ban is constitutional remain underway in Robart’s court, where the states of Washington and Minnesota originally brought suit against the federal government.
The judges said the government had failed to make a case that there was an urgent need to block travellers from the seven Muslim-majority countries on the travel ban list from entering the US:
Although we agree that ‘the government’s interest in combating terrorism is an urgent objective of the highest order’ … the government has done little more than reiterate that fact.
Despite the district court’s and our own repeated invitations to explain the urgent need for the executive order to be placed immediately into effect, the government submitted no evidence to rebut the states’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.
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.
Here’s Kellyanne Conway again insisting that the Trump order will be upheld:
The statute provides a president – in this case President Trump – with great latitude and authority to protect the citizens and protect the nation’s national security …
I think his tweet was perfect when he said we’ll see you in court.
Kellyanne Conway responds to 9th Circuit pic.twitter.com/bn9ufKQyUk
— Jim Acosta (@Acosta) February 10, 2017
As Associated Press notes, the judges came down on the side of the states against the federal government on all points except for one. The states had argued that the appeals court was not the right forum to hear the government case, which it said should go back to the district court that issued the TRO.
But the judges said they did have jurisdiction:
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 ninth 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.
Eric Holder, US attorney general under Barack Obama’s presidency, says the decision today is “vindication” for Sally Yates, the acting US attorney general who was fired by Trump after she instructed justice department lawyers not to defend the travel ban, which she described as not lawful.
Skill, judgment, courgage. VINDICATED. 3-0 pic.twitter.com/5A2uPTXRps
— Eric Holder (@EricHolder) February 10, 2017
Kellyanne Conway, senior counselor to Trump, has been speaking to Fox News:
The nation’s safety is at risk. That’s what this has always been about from the beginning … keeping the country safe.
It’s not just a promise he made as a candidate, it is his duty and responsibility as president of the United States and commander-in-chief.
And in fact he has broad authority to do that under the statute.
This ruling does not affect the merits at all. It is an interim ruling and we are fully confident that now that we will get our day in court and have an opportunity to argue this on the merits that we will prevail.
The judges' full ruling
Hillary Clinton avoids the caps-lock tweet by eschewing alphabetic characters:
3-0
— Hillary Clinton (@HillaryClinton) February 10, 2017
Donald Trump has spoken to pool reporters. He told them he hasn’t had a chance to talk to his new attorney general, Jeff Sessions.
We’re reviewing the case.
We just heard the decision, we just saw it just like you did.
He indicated the government will continue to try to enforce the order through the courts:
It’s a decision that we’ll win, in my opinion, very easily.
Trump said he thought the ruling was “political”.
Here's audio of Trump reacting to the court's ruling against him with NBC's @HallieJackson and @KellyO pic.twitter.com/2eodoIRV0l
— Bradd Jaffy (@BraddJaffy) February 10, 2017
Updated
The judges’ ruling is scathing on the confusion that surrounded the rights of lawful permanent residents caught up in the travel ban.
The ruling notes:
Several days after the executive order was issued, White House counsel Donald F. McGahn II issued “authoritative guidance” stating that sections 3(c) and 3(e) of the executive order do not apply to lawful permanent residents.
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.
What happens next?
Thursday’s ruling does not end all litigation over the executive order, which sparked international outcry when it was first issued.
Instead, it simply means that its provisions – which include a 90-day travel ban from seven Muslim-majority countries, a 120-day freeze on admission of any refugees into the United States, as well as indefinite halt to admitting any refugees from Syria – cannot be enforced again as the legal battle moves forward.
There are roughly 20 lawsuits against the travel ban currently making their way through courts in various states.
Noah Purcell, Washington state solicitor general, who argued the case in court (by phone) on Tuesday, calls the ruling an “excellent opinion”.
It upholds the district court’s judgment in every respect. We couldn’t be more pleased.
He praises the judges for their work.
Washington state attorney general press conference
Bob Ferguson, attorney general for Washington state, one of the states behind the move to block the travel ban is speaking now:
This is a complete victory.
He says the judges “effectively granted everything we sought”.
We are a nation of laws … These laws apply to everyone, including the president of the United States.
The president has asserted … that his actions are unreviewable.
Ferguson cites the judges’ ruling that this idea “runs contrary to the fundamental structure of our constitutional democracy”.
Can courts overrule a president on national security?
Unequivocably yes, the ruling says:
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 goes without saying, but Trump is making it clear this is not over yet:
President Trump just spoke to reporters, impromptu, in West Wing. Called this a "political decision" and reiterated vow to fight in court.
— Hallie Jackson (@HallieJackson) February 9, 2017
Is the travel ban a Muslim ban?
The judges have not made a ruling on this point. But they acknowledge that the claims by the states (Washington state and Minnesota) against the travel ban “present significant constitutional questions”.
From the full ruling:
The states argue that the executive order violates the establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the executive order was intended to be that ban …
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. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
The ruling points to case law
explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose.
It’s reaction ping-pong in the aftermath of the judges’ decision – so far dividing along predictable lines.
Here’s Chuck Schumer, the Democratic minority leader in the Senate:
President Trump ought to see the handwriting on the wall that his executive order is unconstitutional. He should abandon this proposal, roll up his sleeves and come up with a real, bipartisan plan to keep us safe.
And here’s Bill de Blasio, mayor of New York City:
The ninth circuit court of appeals just said ‘No you can’t’ to the Trump administration and its un-American travel and refugee bans.
Here in New York – the safest big city in America – we will always protect our neighbors, no matter where they came from or when they got here. Those are our values.
Rising Republican star Tom Cotton, senator for Arkansas, has slammed the ruling from what he calls “the most notoriously left-wing court in America”:
President Trump’s order to temporarily pause the refugee program and travel from seven war-torn countries is plainly legal under the constitution and our immigration laws.
No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president.
This misguided ruling is from the ninth circuit, the most notoriously left-wing court in America and the most reversed court at the supreme court. I’m confident the administration’s position will ultimately prevail.
To be fair, the Washington state attorney general – like the president, but presumably for different reasons – also got his caps-lock key stuck:
DENIED. UNANIMOUS. PER CURIUM.
— WA Attorney General (@AGOWA) February 9, 2017
(Per curiam = unanimous, by the way.)
Updated
The justice department has been rather more measured in its response, saying only that it is aware of the decision, and is reviewing it and “considering its options”.
Trump responds
The president is in full caps-lock mode:
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
In the hearing on Tuesday, August Flentje, the department of lawyer acting on behalf of the federal government, argued that the executive order issued by the president was not reviewable.
The judges today have roundly rejected this:
The government contends that the district court lacked authority to enjoin enforcement of the executive order because the president has ‘unreviewable authority to suspend the admission of any class of aliens’ …
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 …
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
Updated
In the full ruling, the judges set out why they have refused the government’s attempt to overturn the temporary restraining order on the travel ban.
To rule on the government’s motion, we must consider several factors, including whether the government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay.
We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides.
Nevertheless, 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.
Democrats have responded quickly; here’s a statement from Democratic National Committee (DNC) interim chair Donna Brazile:
Let’s be clear: this is a massive blow to the White House.
The court upheld that we do not discriminate based on religion. That is what terrorists do and what terrorists want us to do …
President Trump still lacks the judgment to see the pointless chaos and harm he has caused – our courts, thankfully, do not.
We are confident this ruling will stand.
You can read a pdf of the court ruling here.
And here is the key conclusion:
Ninth Circuit rules on request to stay lower court's TRO on Trump immigration order pic.twitter.com/fBq36O9ROJ
— Jamie Dupree (@jamiedupree) February 9, 2017
Court rules to uphold travel ban restraining order
The ninth US circuit court of appeals in San Francisco, a federal court, has ruled that President Trump cannot resume his ban on travelers from seven Muslim-majority countries and on refugee entries.
A temporary restraining order (TRO) issued last week by Washington state district judge James Robart put a temporary, but nationwide, halt to the travel ban.
This was challenged in the appeals court on Tuesday, when lawyers for the department of justice, acting on behalf of the federal government, argued that judges should stay the TRO and reinstate Trump’s executive order.
Representatives from Washington state and Minnesota said the TRO should remain in place.
Judge Michelle Friedland, along with Judge William Canby and Judge Richard Clifton, unanimously decided to uphold the TRO.
We’ll have reaction and fallout live here.
Updated
