The 9th Circuit Court of Appeals has ruled 3-0 not to reinstate President Donald Trump’s executive order, which bars entrance of individuals from seven predominantly Muslim countries for 90 days. The order also included a 120-day ban on the entrance of refugees.
The ruling of the San Francisco-based appeals court effectively upholds the temporary restraining order issued by U.S. District Judge James L. Robart of Seattle, blocking implementation of the President’s travel order. Robart, representing the state of Washington, was also joined by the state of Minnesota in the suit against the Trump Administration. Robart, a Republican appointed by George W. Bush, also has a past history of refugee activism.
The three-justice panel which consisted of William Candby, who was appointed by President Jimmy Carter, Richard Clifton, who was appointed by President George W. Bush, and Michelle Friedland, who was appointed by President Barack Obama, ruled 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.”
August Flentje, who represented the Justice Department argued that the United States could be at risk for terrorism until better vetting measures are put into effect for the seven countries which include Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The administration argued that the order was not a ban on Muslims, but rather a measure to better vet individuals entering the US from countries which have alleged terrorist ties.
Moreover, the argument was advanced that President Trump had the legal authority from statute 1182 to bar anyone from entering the United States if their entrance was believed to pose a threat to national security. The administration also repeatedly made the case that the list of seven countries with the 120-day entry pause was originally developed by President Obama.
President Trump responded to the ruling with a tweet. “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
So what happens next? The case could potentially go to the Supreme Court. Just last week, President Trump announced that he was nominating Justice Neil Gorsuch of the 10th Circuit Court of Appeals to replace the late Justice Antonin Scalia. Given that Gorsuch would likely vote to reinstate the order, the Democrats will probably slow walk his confirmation process to build opposition for his nomination, creating yet another reason for the Senate Majority Leader Mitch McConnell to exercise the “nuclear” simple majority vote option.
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