On Thursday evening, the 9th Circuit Court of Appeals landed a blow to the Trump Administration. The court ruled against reinstating President Trump’s executive order banning travel from seven foreign countries. The decision enables the continuation of the country’s open border policy, exposing millions to potential terror threats.
Many expected the court to uphold the lower court’s decision. The states responsible for filing the claim, Washington and Minnesota, likely cherry picked the 9th Circuit for its history of liberal-leaning decisions.
The appeals court is made up of three judges- two of which were appointed by Democratic presidents. During the initial arguments, Judge William Canby and Judge Michelle Friedland seemed hell-bent on denying the order. Canby, appointed by President Carter, interrupted Department of Justice counsel during arguments several times, and demanded “evidence of the need for his (Trump) executive order”. The DOJ responded with reasons for the need to review refugees, but that failed to convince the Court.
The Court feverishly demanded evidence connecting the seven countries targeted by President Trump’s order. Canby questioned if the countries posed any real risk to the United States as the Court continued its probing of DOJ counsel. After asking for examples of terrorist attacks perpetrated by people from these countries, it was obvious the Court was demanding a body count before it would uphold any kind of ban.
Judge Friedland attempted to declare the executive order mute. She based her argument on the grounds of religious freedom, and she contested the ban as targeting people of the Muslim faith. The executive order itself, however, does not such thing. President Obama’s administration identified these countries as highly credible terror threats and Trump’s ban merely imposes a moratorium, until his administration is comfortable with the vetting process.
Administration officials hoped that Judge Richard Clifton would help decide the appeal. President George W. Bush appointed Clifton in 2001. Clifton asked for the states to prove that the ban was a violation of the Establishment Clause. The states had contested the ban violated the clause by discriminating on religion. Clifton reminded the states that the travel ban only affected 15% of Muslim worldwide. Thus it could not be a violation of the clause.
The states argued they have suffered irreparable harm as a result of the executive order. Counsel for the states argued that their universities were unnecessarily harmed as a result, citing examples of researchers and scholars stranded abroad. The basic right to travel as protected by the Constitution served as another key argument. The states cited examples of lawful visa holders and permanent residents denied entry into the United States. The court stated the DOJ had failed to prove its case for the government; the travel ban would remain suspended as a result.
President Trump wasted no time addressing the decision. His tweet sent out Tuesday signaled that the battle is far from over.
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
The Trump administration has not yet outlined their strategy for moving forward, but in a statement late Tuesday night, President Trump stated, “We’ll see them in court. It is a political decision and we will see them in court. We have a situation where the security of our country is at stake. It is a very serious situation, and as I said, we will see them in court.”
The executive order has good merit. The ban is not based on religion -that has been established. Its implementation is the real issue at hand, and it is what gave the court a basis for upholding the order. Now that the administration has a clear leader at the helm of the Department of Justice, the real fight should begin shortly.