On Thursday February 9, 2017 the Ninth Circuit Court of Appeals issued an historic decision upholding the lower court’s order blocking Donald Trump’s travel ban. On January 27, 2017, Trump issued an Executive Order prohibiting entry to the United States by any non-citizen from seven predominantly Muslim countries. The order also blocked entry to the United States by all refugees regardless of their country of origin. Finally, the order stated that when processing of refugees resumed, preference would be given to “religious minorities.” In practice this meant Christian minorities in Muslim countries.
The State of Washington filed suit in U.S. federal court in Seattle, Washington, seeking to block the Executive Order. The State of Washington argued the state itself was harmed by the Executive Order, in part because students, researchers, and professors were barred from the State’s public universities. Judge James Robart agreed with the State of Washington, issuing a nation-wide order blocking implementation of the travel ban. As a result, many persons from the seven banned nations were able to travel to the U.S, as well as numerous refugees previously scheduled to travel.
The U.S. government appealed to the 9th Circuit Court of Appeals. Oral argument was held on Tuesday February 7 before Judges William Canby, Richard Clifton, and Michelle Friedland. Judge Canby was appointed by President Carter and is one of the oldest federal judges; Judge Clifton was appointed by President George W. Bush; and Judge Friedland was appointed by President Obama. She is one of the youngest federal judges. It is hard to imagine a more diverse group of judges. These three judges issued a unanimous opinion rejecting every one of the U.S. government’s arguments in support of the travel ban. The appeals court held:
- Contrary to the U.S. government’s contention, the President does not have “unreviewable” authority to issue immigration orders
- The State of Washington had standing to challenge the travel ban due to the harm the Executive Order had done to the state’s universities and other institutions
- The Executive Order raised serious constitution issues concerning both due process and religious discrimination
- The U.S. government had provided no evidence that there was any actual terrorist threat from the seven banned countries.
While litigation over the Executive Order will continue, this decision is a great victory for the rule of law. Click here for a complete copy of the order.