President Donald Trump has just suffered a significant defeat in federal court. Today a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit denied the Trump administration’s request to lift a nationwide temporary restraining order (TRO) that forbids the government from enforcing the president’s executive order blocking travel to the U.S. from seven majority-Muslim countries.
“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 appeal,” the 9th Circuit ruled today in Washington v. Trump.
In its decision, the 9th Circuit took a dim view of the Trump administration’s broad assertions of executive power. “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 9th Circuit observed. The court then dismissed that government argument out of hand:
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.
The 9th Circuit also rejected the government’s claim that the TRO should be lifted because Washington state will ultimately lose on the legal merits of its case:
The Government has not show that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims.
The 9th Circuit also rejected the Trump administration’s request to at least limit the scope of the TRO:
We decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well.
In short, the Trump administration lost on all counts. The nationwide temporary restraining order against Trump’s travel ban remains in force and three 9th Circuit judges expressed serious reservations about the constitutionality of the government’s actions.
It is likely that the Trump administration will now appeal this loss to the U.S. Supreme Court.