A federal appeals panel kept in place a stay imposed on the Trump Administration’s travel ban from seven Muslim-dominated countries. The 9th U.S. Circuit Court of Appeals order sets up a potential administration appeal to the U.S. Supreme Court.
The unanimous three-judge panel said, “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.”
Judges William Canby, Richard Clifton and Michelle Friedland issued the order together without designating which judge wrote the opinion. Canby was appointed by President Carter, Clifton by President George W. Bush and Friedland by President Obama.
On January 27, the President ordered the temporary suspension of entries to the U.S. by people holding green cards and people vetted and approved in the refugee programs from seven countries identified as having increased risk of terror activity.
The seven nations are also Muslim-dominated countries, Iran, Iraq, Syria, Libya, Somalia, Yemen and Sudan.
Washington state asked that the Executive Order be declared unconstitutional and the government enjoined from enforcing it. A federal judge in Seattle agreed and blocked further enforcement on Friday and the U.S. Justice Department appealed.
The government argued that the appeal court has no authority to rule because the President has “unreviewable authority to suspend admission of any class of alien.”
The government has not shown that the executive order provides the constitutional due process protections required by the Constitution, such as notice and hearing prior to restricting an individual’s ability to travel, the opinion states.
Due process is not limited to citizens, but applies to “all persons within the United States,” regardless of whether their presence here is lawful, unlawful or temporary, the opinion states.
The court then refused the government suggestion that the original stay order be limited to lawful permanent residents.
“That limitation on its face omits aliens who are in the United States unlawfully, and those individuals haave due process rights as well, the court said.
Nor would the court limit the nationwide stay geographically to apply only to Washington.
Although the state argued that the travel ban intentionally disfavored Muslims from entry to the U.S. in violation of the Establishment Clause and Equal Protection clause of the Constitution, the court reserved judgment until more evidence is provided on the merits of the claims back at the trial court in Seattle.
In a significant development, the judges did point to the President’s own election campaign statements calling for a “Muslim ban” saying the comments could be taken into account when considering evidence of whether the order violates religious protections under the Constitution. Citing a 1993 Supreme Court decision that “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”
The panel concluded, “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. Rather than present evidence to explain the need for the Executive Order, the government has taken the position that we must not review its decision at all. We disagree.”
Case: Washington v. Trump, 17-35105