President Trump has suffered a serious blow to his authority following a decision by a court of appeals against his controversial travel ban.
Late Thursday, the Ninth Circuit in San Francisco denied an emergency motion to lift an injunction against the ban, which restricted people from seven Muslim-majority countries from entering the country.
It noted that there was "no evidence that any alien from any of the countries named in the Order perpetrated a terrorist attack in the United States," and added that Trump's actions present "significant constitutional questions."
As a result, the ban will not be enforced at the country's borders – an enormous blow, given Trump's persistent efforts to enforce it.
The three-judge panel did not produce a dissenting opinion and argued that the government was unlikely to win its appeal against a federal judge who had struck the executive order down, and said there would not be any "irreparable injury" if the ban remained unenforced.
The 29-page judgment notes the "immediate and widespread" impact that the executive order had for the three days it was imposed, noting that "hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained."
It is heavy on legal reasoning and jargon – given that it is a legal review of a request to overturn a legal judgment against an executive order – but the end result is stark: the executive has been told by the judiciary it does not have the only word when it comes to the country's borders.
The court rejected the Justice Department's arguments one by one:
- The states bringing the case against the government had legal standing.
- The president does not have "unreviewable authority" to restrict non-citizens' entry into the United States.
- The court order putting the ban on hold is legal.
It also has some harsh words for the White House and how it rolled out the ban, repeatedly changing its mind about its breadth. "The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order," it notes with respect to the argument over whether green card holders were included in the ban or not.
"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 judges state.
When's a Muslim not a Muslim?
As to the White House's argument that the ban was not a "Muslim ban" – effectively on the grounds that the word "Muslim" was not used – the appeals court was unimpressed.
"The States' claims raise serious allegations and present significant constitutional questions," it said with respect to the claim that the order broke the law when it came to religious discrimination. "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."
It also slapped down the reasoning for the travel ban – that citizens from the seven affected countries represented a security risk. "The Government has pointed to no evidence that any alien from any of the countries named in the Order perpetrated a terrorist attack in the United States."
It denied the motion and in doing so set in train an extraordinary fight between the judiciary and executive branches. The White House is almost certain to appeal the ruling up to the Supreme Court, which may then find itself in the position to decide exactly how far a president's authority extends.
If Trump has any sense, he will withdraw the executive order and go back to the various arms of government in order to redraft it. But, as the United States has noted repeatedly in the three weeks that it has lived under its new president, this is not a man capable of introspection or impulse control.
Inevitably, Trump took to Twitter to express his view. Less than 30 minutes after the news broke, he responded in all caps: "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" ®