- By Emily TamkinEmily Tamkin is a staff writer at Foreign Policy. She writes for FP’s The Cable, a real-time take on the news in Washington and the wider world. She has been at FP since the fall of 2016, before which she was an associate editor at New America, a nonpartisan think tank in Washington. She has a B.A. in Russian literature from Columbia University, an M.Phil. in Russian and East European studies from the University of Oxford, and studied Soviet dissidence in archival centers in Moscow, Tbilisi, and, on a Fulbright, in Bremen — all of which means that at FP, she writes when she can on Russia and Central and Eastern Europe., Robbie GramerRobbie Gramer is a staff writer at Foreign Policy. He writes for The Cable, FP’s real-time take on all things, well, foreign policy. Before he joined FP in 2016, he used to think in a tank, managing the NATO portfolio at the Atlantic Council for three years. He’s a graduate of American University’s School of International Service, where he studied international relations and European affairs. He has lived in both Washington and Brussels, though he grew up in Idaho and Oregon, so he’s a West Coaster at heart. When he’s not busy reporting, he’s probably busy starting three new books before he has finished the last one or planning a trip to a national park he hasn’t visited yet.
The Ninth Circuit Court of Appeals ruled unanimously against President Donald Trump’s immigration ban in a ruling issued Thursday evening. Trump is widely expected to challenge the court’s ruling in the Supreme Court. The executive order, Trump’s highest profile and most controversial of his presidency so far, will be void until then.
The decision took square aim at the Trump administration’s argument that the ban must remain in place for national security reasons. “We hold that the Government has not shown … that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay,” the court ruled.
The stay on the ban will remain in place, although that does not set a national precedent as a Supreme Court ruling would. The ruling is not based on the merits of the executive order, but it keeps the temporary restraining order on Trump’s executive order in place. Still, Supreme Court lawyer and Georgetown University law professor Neal Katyal called the ban “an utter repudiation of the Trump order.”
Trump, for his part, responded on Twitter.
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
On Feb. 3, a George W. Bush-appointed federal judge in Seattle, Washington blocked the enforcement of U.S. President Donald Trump’s ban on immigrants from seven Muslim-majority countries — Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen.
The Departments of State and Homeland Security announced they would comply with that decision. On Feb. 5, the Ninth Circuit Court of Appeals denied an emergency request filed by the Department of Justice. Both sides put forth arguments to the three-judge panel On Tuesday.
Lawyers for Department of Justice argued that the temporary suspension of the order was causing irreparable damage to America’s national security. The federal judges bored into the argument, presaging the coming Supreme Court showdown. Judge Michelle T. Friedland, an appointee of Trump predecessor President Obama, asked whether there was evidence connecting any of the countries concerned to terrorism. When Department of Justice Special Counsel August E. Flentje replied that the proceedings were moving quite quickly, the judges noted it was the Department of Justice that had asked for the emergency hearing.
“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,” the court wrote, arguing that public interest required a stay of the travel ban.
Flentje had also argued that courts cannot review the president’s national security judgement.
“The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections,” the court wrote.
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
Washington state solicitor general Noah Purcell, representing Washington and Minnesota, argued that, though roughly only 15 percent of the world’s Muslims would be impacted by the ban (according to the judge’s calculations), it was indeed a Muslim ban, citing Trump’s campaign promises to do just that. Not every Muslim must to be harmed, he argued, for religious animus to be inferred.
The court declined to rule on whether the executive order is in fact based on religion.
The original argument made by the lawyers from Washington and Minnesota was that the ban would “unleash chaos” by splitting up families and stranding travelers. Trump’s executive order sparked confusion and protests across the country immediately after it was signed. U.S. green card holders, Iraqi translators for the U.S. military, and even a 5 year-old Iranian child were caught in ensuing chaos. Former Democratic Secretaries of State John Kerry and Madeleine Albright sent a joint statement to the appeals court saying the ban “undermined national security.”
It would seem the Ninth Circuit Court of Appeals agrees that at least that should be decided at a later date as states continue to bring forth their case. In the meantime, it will allow citizens from the seven countries impacted to travel to the United States.
The country will now likely turn to the eight-justices-for-now U.S. Supreme Court to see if it does, too. What’s less clear is when the Supreme Court might hear the case: Justice Neil Gorsuch, Trump’s court nominee, could see a confirmation hearing as early as next month. Though he irked Trump by criticizing the president’s own lambasting of the district and circuit courts — Trump blasted the “so-called judge” for halting his order — Gorsuch is still on track for confirmation, which would tilt the court back to a 5-4 conservative majority.
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