A U.S appeals court upheld a nation wide stay on the travel ban imposed by the Donald Trump administration on people from seven Muslim majority countries, while asserting the judicial power to review decisions made by the executive on national security matters.
The three-judge panel did not rule on the merits of the executive order that imposed the travel ban, but acknowledged the arguments brought against it, including the fact that Mr. Trump and his close advisers had earlier talked about barring Muslims from entering the country. “…the public has a powerful interest in national security and in the ability of an elected President to enact policies... the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination,” the judges said, rejecting an appeal from the Trump administration to reinstate the travel ban, which was suspended by a federal judge in Washington State.
‘Onus on government’
The onus was on the government to show that its executive order is likely to stand on constitutional merits, in order to be allowed its enforcement immediately. The court held that the “government has not shown a likelihood of success on the merits of its appeal.” The government also failed to support its claim that not imposing a travel ban could cause any immediate problems, the court held.
The executive order had indefinitely barred admission of refugees from Syria, and banned travel from the seven countries for 90 days. It also suspended the U.S refugee admissions programme for 120 days. The court upheld the lower court stay on the order in its entirety, nation-wide. With the rejection of the government appeal, four judges have ruled against the order – two of them appointed by Republican Presidents and the other two by Democratic Presidents.
‘See you in court’
Mr. Trump tweeted in full capitals, in response to the order: “See you in court.” The government can either appeal to the full panel of judges in the 9th Circuit that heard the appeal or move the Supreme Court. Both options are fraught, and there are slim chances of the travel ban coming into force.
More significant for the Trump administration and its opponents are the merits of this particular executive order, and the scope of executive power in general which will be reviewed in the coming days. The court rejected the government argument that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable by the court. “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the court held, in what could serve as a reminder to the Trump administration.
Brookings scholar Benjamin Wittes pointed out in a blog that the court order did not cite the U.S statute from which executive order sought to draw its power. Mr. Trump cited the blog in a second tweet. “Remarkably, in the entire opinion, the panel did not bother even to cite this [the] statute,” he quoted from the blog and added. “A disgraceful decision!”
Mr. Wittes pointed out that the “grounds on which this order was fought are not the grounds on which the merits fight will happen.” However, the appeals court cited former Supreme Court orders to underscore points that may not be music to Mr. Trump’s ears. “The Constitution of the United States is a law for rulers and people, equally in war and in peace ... under all circumstances,” the order quoted a former SC ruling.“ It also reminded that “aliens who are in the United States unlawfully . . . have due process rights as well,” which means, even illegal immigrants cannot be thrown out without due process. The court also cited the U.S Supreme Court ruling that held that the constitutional right of habeas corpus extended to non-citizen prisoners at the Guantanamo Bay also.
