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Trump Still A Big Loser: 9th Circuit Asserts Authority To Review Muslim Ban, Won’t Reinstate It

The Ninth Circuit Court of Appeals considered the American public, which has an interest in “free flow of travel,” in “avoiding separation of families, and in freedom from discrimination” and unanimously rejected President Donald Trump’s emergency motion to reinstate the Muslim ban.

The emergency motion was filed in response to a temporary restraining order issued on February 4 by United States District Judge James Robart, who ruled against the administration in a case brought by the states of Washington and Minnesota.

The order resulted in the Homeland Security Department and State Department pausing their enforcement of the ban. That made it possible for everything to mostly return to normal when non-U.S. citizens with visas and refugees, who went through thorough vetting processes, were allowed into the country.

Trump immediately threw a tantrum through his Twitter account and tweeted in ALL CAPS, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” But the government has wholly failed to offer any proof that this ban is necessary to protect national security.

“Although the government points to the fact that Congress and the executive identified the seven countries named in the executive order as countries of concern in 2015 and 2016, the government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the executive order to be immediately reinstated,” the court stated.

The court added, “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.”

It seems the appeals court was particularly bothered by the Trump administration’s insistence that the court “lacked authority to enjoin enforcement of the executive order because the president has ‘unreviewable authority to suspend the admission of any class of aliens.'”

As it noted, “The government has taken the position that the president’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable [emphasis not added], even if those actions potentially contravene constitutional rights and protections. The government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.”

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

Parts of the decision read like an attempt to educate President Trump on the nation’s system of checks and balances. “Federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.”

For example, the courts struck down a statute that attempted to deprive federal courts of jurisdiction over habeas petitions brought by “enemy combatants” captured in Afghanistan or elsewhere after the September 11th attacks. The courts struck down a statute that denied passports to American members of the Communist Party “despite national security concerns.” The courts also deemed it unconstitutional for the government to detain law-abiding and loyal Americans of Japanese ancestry in internment camps during World War II.

In terms of due process rights under the Fifth Amendment, the court declared, “The government has not shown that the executive order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.” The government maintains most of the individuals affected have no rights under the Constitution.

“The procedural protections provided by the Fifth Amendment’s due process clause are not limited to citizens.” They extend to aliens in the U.S., “whether their presence is lawful, unlawful, temporary, or permanent.” Rights also “apply to certain aliens attempting to reenter the United States after traveling abroad.”

To the claim that the executive order does not apply any longer to lawful permanent residents, this government claim did not satisfy the court. This is the White House counsel’s interpretation of the order, and the government has not proven it is “binding on all executive branch officials responsible for enforcing the executive order.”

Omar Jadwat, the director of the ACLU’s Immigrants’ Rights Project, responded, “The appeals court’s refusal to reinstate the Muslim ban is correct. We will keep fighting this un-American executive order until it is permanently dismantled.”

The ACLU, as well as other organizations, have pursued lawsuits in other courts against the ban.

The states of Washington and Minnesota, which are supported by nearly 100 companies as well as former top national security officials, will have an opportunity to pursue their case in the lower court. However, it seems like a virtual certainty the Trump administration will immediately appeal the decision to the Supreme Court.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."