On February 9, a three-judge panel of the Ninth Circuit rejected the government’s emergency request to reinstate key sections of President Trump’s executive order temporarily banning all noncitizens from seven majority Muslim countries and all refugees. The 29-page order found that the states of Washington and Minnesota have a right to sue. The three judges also rejected the government’s argument that courts cannot review a President’s decision about immigration policy. The court noted that the constitution’s separation of powers principle requires courts to interpret the law, even if that means ruling against the president.
The three judges noted that they were not ruling on the merits of the case. They merely found that the government had not met its burden to show that it would be harmed if the lower court’s temporary stay continued. For example, the appeals court noted that the government failed to provide any evidence that any alien from any of the seven countries affected by the executive order has committed a terrorist attack in the United States. By contrast, the court found that the states had offered ample evidence that if the stay was lifted, they and their citizens would be harmed.
The Ninth Circuit panel’s decision was unanimous, thorough, and well-reasoned. It reaffirmed the important independent role of courts in our government. Because the case is only at the preliminary stage, it is unlikely that the full Ninth Circuit or the Supreme Court will hear an immediate appeal by the government. Instead, the government will need to go back to the trial court to try to present evidence justifying the temporary travel and refugee ban.
Thus, for the time being, the nationwide injunction against key parts of the President Trump’s immigration ban remains in place. Citizens of the seven affected countries can apply for visas to enter the United States.