A federal appeals court in San Francisco declined Thursday to reinstate President Donald Trump’s ban on travel from seven predominantly Muslim countries.
A three-judge panel of the 9th U.S. Circuit Court of Appeals turned down the Trump administration’s bid for an emergency stay of a lower court order suspending the ban.
The three judges said they were “mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides.”
The court said:
“Nevertheless, 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.”
Trump sent out a tweet following the ruling saying:
“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
The decision can be appealed to an expanded 11-judge panel of the circuit court or immediately to the U.S. Supreme Court.
Alternatively, the Trump administration could continue with an expedited appeal before a three-judge panel to challenge the temporary restraining order issued last Friday by U.S. District Judge James Robart of Seattle.
In the event that the administration chooses an expedited appeal, the circuit court set a briefing schedule for March, with the final filing from the government due March 29.
The ban, issued by Trump in an executive order on Jan. 27, would bar visitors and refugees from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days.
It would stop refugees from all countries for 120 days and exclude Syrian refugees indefinitely.
Robart issued the temporary restraining order in a lawsuit filed by Washington state and Minnesota. The two states were supported in briefs filed by 18 other states, including California.
The states have argued the ban discriminates against Muslims, denies visitors and legal residents due process, and would harm the states’ universities, medical institutions and tax revenue.
The U.S. Department of Justice contended the ban was within the president’s power to determine national security risks. It argued that courts have either very limited or no power to review presidential executive orders.
But the appeals panel rejected the claim that the judicial branch lacks reviewing authority.
The panel said:
“It is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
The panel said the Justice Department had not shown that it was likely to defeat the state’s claim that the ban violated the due process rights of legal residents and visa holders from the seven countries.
The judges said the states had also raised “serious allegations” and “significant constitutional questions” on the second claim of religious discrimination, but said the court would defer consideration of that claim until it had received further briefing.
If Robart’s temporary restraining order is left in place after further appeals, the case will go back to his court in Seattle for proceedings on whether to grant a longer-term injunction.