Court blocks Donald Trumps's travel ban

Trump excoriated him as a "so-called judge" and called his temporary restraining order "ridiculous

A federal appeals court unanimously refused to reinstate President Donald Trump’s ban on travel from seven Muslim-majority countries, issuing a sharp rebuke in a ruling likely destined for the US Supreme Court.

Trump was defiant, tweeting 26 minutes later, “SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE!” He told White House reporters the decision was “political.”

The 29-page ruling from a three-judge panel of the Ninth Circuit Court of Appeals concluded roundly that the government failed to make its case that a temporary freeze on the ban should be lifted, and called into question presidential power to limit immigration in the way Trump did.

The judges rebuffed the contention that the states of Washington and Minnesota had no right to sue in the matter — and rejected the argument that courts have no authority to review an executive branch decision on immigration policy.

That notion “runs contrary to the fundamental structure of our constitutional democracy,” according to the jurists, two of whom were appointed by Democratic presidents, one by a Republican. The court announced the decision in an unsigned opinion, making it impossible for Trump, who has tweeted criticisms of the judicial system in this case, to single out one of them.

With his January 27 executive order, issued without warning, Trump was making good on campaign promises to stop Muslims from entering the country to defuse the threat of Islamist terrorism by halting the flow of those who he said might be secretly planning attacks. It has been the most consequential act of a young and aggressive administration that wants to minimise America’s engagement with the world, roiling global politics in the process. It spurred protests across the US and a flurry of lawsuits, with the one from the states of Washington and Minnesota the first to reach an appeals court. Reaction to the panel’s decision was predictably divided. David Rivkin, a constitutional litigator who worked for two Republican presidents, Ronald Reagan and George W Bush, called it “deplorable” and said “it goes way beyond this executive order” in its commentary.

“It’s nothing less than a blatant and unprecedented aggrandisement of judicial power in the foreign affairs sphere at the expense of the executive branch and Congress,” he said. “It will not stand.”

Immigration advocates and other legal scholars lauded it, with Stephen Wasby, a professor at State University of New York in Albany, saying it was “a wake-up call for the Trump administration.”

In response to Trump’s tweet, Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, tweeted, “We already saw you in court. You lost. And we’re not sick of winning yet, Mr. President.”

The appeals court cautioned that its analysis was preliminary, emphasising that its task was only to decide whether a temporary restraining order issued by US District Judge James Robart in Seattle in the states’ suit should be lifted or kept in place, “in light of the relative hardship and public interest.”

Even if the high court weighs in, the issue at hand is a narrow one and the underlying case is at an early stage. Robart must still analyse evidence and hear arguments to determine if the executive order violates the Constitution. The Supreme Court could intervene now to allow Trump to temporarily resume the ban, and perhaps later take the case to decide to uphold or reverse further rulings that deal more directly with the substance of the arguments. An immediate appeal would come before a divided eight-justice court that is awaiting approval of Trump’s nominee, Neil Gorsuch. Reversing Thursday’s ruling would require a five-vote majority.

The prospective ninth justice told more than one senator he was dismayed by the president’s attacks on the judiciary, including Robart. In Twitter posts, Trump has excoriated him as a “so-called judge” and called his temporary restraining order “ridiculous".