Notes

SAN FRANCISCO, Calif. — The legal fight over President Donald Trump's ban on travelers from seven countries is on hold. The 9th U.S. Circuit Court of Appeals refused to bring back the order, unanimously rejecting the Trump administration's claims for why it was necessary and allowed.

Federal courts, such as the courts of appeals, hear cases to decide whether they violate federal law or the constitution. Decisions are made by judges, not juries. The 9th Court is just one of 13 courts of appeals. They are below the Supreme Court.

The three federal appellate judges have been appointed to their jobs by Democratic and Republican presidents. All three agreed on Thursday with the states of Washington and Minnesota, which filed a lawsuit against the travel ban as unconstitutional and against the law.

Travel Ban Headed To Supreme Court Next?

The 9th Court's decision not to put the travel ban back in place means the case could go to the U.S. Supreme Court next.

Moments after the ruling Thursday, Trump tweeted, "SEE YOU IN COURT," adding that "THE SECURITY OF OUR NATION IS AT STAKE!"

On Friday, Trump tweeted, "A disgraceful decision!"

It is unclear what Trump's next move will be. The Justice Department said it is reviewing the decision and considering its options. It was the first day on the job for new U.S. Attorney General Jeff Sessions. The attorney general is the head of the Justice Department.

The lower court action so far is short term. It also hasn't resolved broader questions about the legality of Trump's order. While the ban is on hold, refugees and people from the seven nations identified in the president's January 27 executive order can travel to the U.S.

The appellate judges noted compelling public interests on both sides.

"On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination."

The Trump administration could appeal the ruling to a larger panel. Or, the administration could go straight to the U.S. Supreme Court.

That could put the decision in the hands of a divided Supreme Court that also has an open seat. One of the court justices died last year. President Obama nominated Merrick Garland, but a divided Congress never approved Garland before Trump took office. Trump has nominated a replacement justice named Neil Gorsuch. He must be confirmed by the Senate.

Gorsuch will not be confirmed in time to take part in any consideration of the ban. The ban expires in 90 days unless it is changed.

The ban also faces dozens of other lawsuits. Some have been filed by people who are directly affected by it.

Judges Challenge Government's Claims Of National Security

Stephen Vladeck is a professor at the University of Texas School of Law. He said two footnotes near the end of the 9th Court's opinion struck him as most significant. The footnotes challenged the government's claim that national security was at stake. The judges did not have evidence that people from the seven banned countries were a threat to the United States. But, they would face harm if they were not allowed to enter the U.S., such as being separated from family or unable to return to college.

"It's not enough for the president to simply proclaim that the executive order is necessary to protect national security," Vladeck said. "He needs to give us at least some basis for agreeing with him."

The judges rejected the Trump administration's argument that courts did not have the authority to review the president's decisions on these matters. They said Trump's order should have provided notice or a hearing before restricting travel. And, the administration did not present proof that any foreigner from the seven countries was responsible for a U.S. terrorist attack.

Intense Public Interest Make Ruling A Priority For Courts
Last week, U.S. District Judge James Robart in Seattle issued a short-term restraining order halting the ban after Washington state and Minnesota filed a lawsuit. The ban temporarily suspended the nation's refugee program and immigration from countries that have raised terrorism concerns.

Justice Department lawyers appealed to the 9th Court after Robart's ruling. They argued that the president has the constitutional power to limit entry to the United States. The Justice Department also said that the courts cannot second-guess Trump's decision that this was needed to prevent terrorism.

The states said Trump's travel ban harmed individuals, businesses and universities. Citing Trump's campaign promise to stop Muslims from entering the U.S., they said the ban unconstitutionally blocked entry to people based on religion.

The appeals court sided with the administration on just one issue. The states had argued that 9th Court's previous actions prohibit a review of short-term restraining orders. The panel said that the intense public interest and uncertainty over how long the court case might take made it appropriate for the court to consider the federal government's appeal.

After the ban was put on hold, the State Department quickly said people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — with the correct visas could travel to the U.S.