February 09, 2017
The 9th U.S. Circuit Court of Appeals upheld a temporary restraining order blocking President Trump’s extreme vetting policy Thursday night, delivering another legal setback for the new administration.
The court said the administration bungled the writing of the Jan. 27 executive order by making it too broad, and botched its legal defense in court, failing to present any evidence that those targeted by the policy have perpetrated attacks in the U.S.
“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,” the three-judge panel said in the unanimous ruling.
Trump fired back on Twitter: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
Thursday’s ruling upholds a temporary restraining order imposed by a lower-court judge last week, meaning Trump cannot carry out most of his policy.
But it’s not the last word. The judges already set a schedule for a more full hearing of the case in March, and an appeal is also possible.
Immigrant-rights advocates cheered the ruling, saying the court stood up for refugees and immigrants.
Conservatives, though, said the decision was misguided and potentially dangerous.
“No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president,” said Sen. Tom Cotton, Arkansas Republican. “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.”
Trump’s order halted for 90 days visitors from Iran, Iraq, Yemen, Somalia, Syria, Sudan and Libya. It also paused the U.S. refugee program for 120 days. Both delays were intended to give the government a chance to improve vetting procedures, officials said.
The seven countries singled out in the policy were not Trump’s picks. They were based on a 2015 law passed by Congress, and a 2016 determination by the Obama administration that those countries didn’t have enough infrastructure or cooperation with the U.S. for American officials to trust that the people coming from there were who they said they were.
“I’m at a total loss to understand how we can vet people from various countries when in at least four of those countries we don’t even have an embassy,” Homeland Security Secretary John Kelly told Congress earlier this week, defending the executive order.
Some 60,000 visas were canceled and more than 1,000 people were blocked from getting on planes to travel to the U.S. after the order went into effect.
A number of legal challenges were filed, and the Trump administration quickly issued guidance saying that green card holders, signifying legal permanent residency, and Iraqis traveling on visas issued because of their help to the U.S. war effort should be admitted.
Even after those clarifications, the states of Washington and Minnesota filed a lawsuit in Seattle arguing most of the policy was illegal.
Late last Friday, Judge James Robart issued a temporary restraining order putting most of the policy on hold.
The Trump administration had argued that the president’s national security decisions, particularly in the area of immigration, shouldn’t be second-guessed by the courts. Court precedents said nobody outside the U.S. has a right to a visa, the Justice Department argued.
But both Judge Robart and the 9th Circuit disagreed.
The appeals court said illegal immigrants in the U.S. have some rights, as do relatives living inside the U.S. to facilitate the travel of their families still living outside the country.
The court also said Trump botched the matter by writing such a broad order in the first place, then having his lawyers try to clarify it. The judges said they did not believe the White House counsel’s office could supersede the language of the order itself, which was signed by the president.
The appellate judges said they would save for later the debate over whether Trump’s policy amounts to the “Muslim ban” he promised during the campaign — which, if true, would be an unconstitutional infringement on religion, immigrant-rights advocates said.
Trump had heaped pressure on the federal courts to side with him, saying judges would be blamed if a terrorist got into the country while his order was halted.
One federal judge in Boston ruled in favor of Trump, saying foreigners have no constitutional right to obtain or keep a visa.
The Trump administration had urged the courts to follow the lead of that Boston judge.
“Why aren’t the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?” Trump said in a Twitter post earlier this week.
After the oral argument in the appeals court, the president seemed fed up, saying the arguments strayed far from his focus on keeping the country safe from the threats he sees.
“I listened to lawyers on both sides last night and they were talking about things that had just nothing to do with it,” he told a law enforcement gathering on Wednesday.
He’d previously attacked Judge Robart as a “so-called judge,” and in his speech he said the courts “seem to be so political.”
Polling on the extreme vetting policy has been confusing. One poll taken by Morning Consult this week showed a clear majority — 54 percent — in favor of the temporary ban on visitors from the seven suspect countries, while a CBS News poll found a majority — 51 percent — to be opposed. A CNN poll put opposition at 53 percent.