Court Of Appeals Unanimously Rejects Trump's Travel Ban: Full Ruling

Tyler Durden's picture

In a decision that will hardly come as a surprise, the 9th Circuit Court of Appeals has unanimously (including one GOP appointee) ruled for the U.S. to remain open to refugees and visa holders from seven Muslim-majority countries while the Trump administration fights to reinstate a travel ban in the name of national security.

The San Francisco-based appeals court on Thursday denied the government’s request to close the doors after days of public debate over President Donald Trump’s attacks on the judicial system and a rush of fearful immigrants. The ruling increases the likelihood that the administration will ask the Supreme Court to step into a case that’s the biggest test of Trump’s executive power yet.

The government had made a request to reinstate the measure on an emergency basis, which the judges considered to be unwarranted.

"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 motion for a stay."

The three-judge panel hearing the case included Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, a Barack Obama appointee.

"Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree," they wrote.

"In short, although courts owe considerable deference to the President's policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."

Trump made a brief remark to reporters in the West Wing, calling the ruling “a political decision" and saying national security is at stake, according to NBC News. The appeals court refused to reinstate Trump’s order after a Seattle judge halted enforcement while courts decide whether it’s constitutional. “The courts seem to be so political,” Trump said in a speech on Wednesday. “It’s so sad."

The president’s action initially denied entry to an Iraqi who helped U.S. military, professors at University of Massachusetts and a student seeking to bring her daughter for medical treatment. The ban set off angry protests nationwide and attracted a flurry of lawsuits and adverse rulings. None was more sweeping than that of U.S. District Judge James Robart in Seattle. Washington and Minnesota won the order temporarily blocking the ban nationwide after arguing it hurt their residents and employers including Microsoft, Amazon.com Inc. and the Mayo Clinic.

* * *

The administration can now ask the Supreme Court to immediately intervene, which most legal experts think is likely, or wait until a ruling on the preliminary injunction order. The high court is currently shorthanded with eight justices. If there is a split decision, the lower court’s ruling would be upheld.

As The Hill reports, Sen. Tom Cotton (R-Ark.) blasted the court Thursday night, saying Trump’s order is “plainly legal under the Constitution and our immigration laws” and warning that “courts ought not second-guess sensitive national-security decisions of the president.” 

“This misguided ruling is from the Ninth Circuit, the most notoriously left-wing court in America and the most reversed court at the Supreme Court. I'm confident the administration's position will ultimately prevail."

Critics of the travel ban came out quickly to cheer the decision: "President Trump ought to see the handwriting on the wall that his executive order is unconstitutional. He should abandon this proposal, roll up his sleeves and come up with a real, bipartisan plan to keep us safe," Senate Minority Leader Charles Schumer (D-N.Y.) said. 

Bernie Sanders added that the court ruling could "teach President Trump a lesson." 

"Hopefully, the unanimous court ruling against President Trump’s immigration ban will restore some of the damage he has done to our country’s reputation around the world," the former Democratic presidential candidate said in a statement minutes after the ruling came down.

Then there was a tweet from the Washington Attorney General who started all of this:

And, of course, Hillary Clinton:

... to which however there was an apt reaction:

* * *

However, it was Trump's tweeted response that made it clear what the next step is: 12 words, ALL CAPS, and all making it clear that Trump won't let it go without a Supreme Court showdown, because just moments after the Appeals Court ruling was released, Trump tweeted the following:

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

Concurrently, the US Department of Justice has said that it is reviewing the Appeals Court decision on the Trump travel ban and is "considering its options."

What are next steps?

  1. Do nothing.
  2. Seek an emergency stay
  3. Petition for certiorari before judgment, in the Supreme Court of the United States

Based on the Trump tweet, the option the President will pick is clear: showdown at the Supreme Court.

* * *

Some key excerpts from the ruling.

To rule on the Government's motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, 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 motion for a stay.

The Opinion starts with Due Process, and rejects the assertion that aliens are not entitled to due process:

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. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.

Here is the Court saying that Green Card holders have Due Process rights, as do all people on US soil:

First, 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. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States... There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.

Here the Court is dismissive of Trump's DOJ claim that the ban is necessary for security, adding there is "no evidence" that aliens from the seven countries perpetrated terrorist attacks:

the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.

 

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.  Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.  We disagree.

The court rejecting the argument that a TRO should be narrowed in scope, noting that citizens may have interests for non-citizen travel:

First, 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. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.

On the government's lack of demonstrated authority that a memo from White House Counsel supersedes the Exec Order.

The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.

 

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.as

The Court faults the government for submitting "no evidence" to justify the change in long-standing national security policies.

The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.

The Court ends by emphasizing that it has considered national security, but tips towards free flow of travel and freedom from discrimination.

Finally, in evaluating the need for a stay, we must consider the public interest generally. See Nken, 556 U.S. at 434. Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. 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. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.

The punchline and the one sentence that will infuriate Trump, is the following in which the court says it is "beyond question" that the courts have the authority to oversee the President.

In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

The fight, however, is far from over. The court battle so far has focused on whether the president’s order should be paused while courts weigh larger issues. Robart already ordered both sides to submit additional arguments focusing on the substance of the case: whether the states have a right to sue and whether Trump’s order discriminates against Muslims.

Ultimately, the case is likely to end up before the US Supreme Court, although the next three immediate steps are to 1). do nothing, 2) seek an emergency stay, or 3) cert before judgment, i.e., petition the US Supreme Court.

The most likely outcome is the last one.

The full ruling is below:

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MFL5591's picture

No surprise here, didnt need to wait at all!

onewayticket2's picture

no surprise....the "judges" ignored the law and made a judgement based on policy (legislating from the bench) and feelings.

xavi1951's picture

The 9th Circus Court is more proof that Liberalism is a mental illness.

They will be overturned by the USSC.  As usual !

NoDebt's picture

I'm surprised the 9th Circuit didn't rewrite the entirety of immigration law from the bench while they were at it.  "Any one who can get here is in and can never be made to leave."

 

Syrin's picture

Guys, the court has NO JURISDICTION over the president on this other than what Trump decides to give to them.   They are literally usurping his authority.   He needs to give them the finger and put them back in their place.   It's like the courts telling them he can't sign a contract with NATO.  

Syrin's picture

And by the way, Trump should take 100 unvetted "refugees" from Iraq and put them in the neighborhoods of every judge who ruled against him, thne ignore their ruling all together.

wildbad's picture

motherfuckers

time for an end-around.

extreme vetting.

Occident Mortal's picture

USA is now fully primed for a big false flag event.

bigkahuna's picture

where were they when obooby was dropping immigration executive orders?

Handful of Dust's picture

Another "Fuck you' to the hard working American citizens from the Liberal left Wingers.

AVmaster's picture

It's no surprise. The courts blew their "non-political" leanings cover after the farce called obamacare...

 

Ever since then, they have opening flaunted that they are leftarded and proud of it...

 

We got a LONG LONG LONG cleanup job ahead of us... Gonna take years, decades. All trump can do is set the precedent for the cleanup....

greenskeeper carl's picture

People are making a YUUGE mistake by think this will get a fair hearing in the supreme court once Trumps new pick is installed. Kennedy is a semi-closeted liberal, and Roberts essentially rewrote obama care and crammed it down out throats. This it fucking assinine.

Gaius Frakkin' Baltar's picture

1. Do nothing.
2. Seek an emergency stay
3. Petition for certiorari before judgment, in the Supreme Court of the United States
4. Declare martial law in California and send in the Army.

As of now they are currently a rogue state.

Manthong's picture

9th circus court of schlemiels.

 

The only place the left can look for success anymore are to the leftist-packed courts.

 

But that swamp will be drained, too.

 

johngaltfla's picture

Trump does have a very powerf "fuck you" and nuclear option to take out the Globalist 'no border' assclowns and the tech fascists in one shot:

Trump’s Nuclear Option Regarding the 9th Circuit Immigration Ruling
Fed Supporter's picture

So the court said non citizens have a right to due process and to travel in america yet americans on the no fly list have no due process to travel in america.  Am I reading this correctly.  I thought the 1955 imigration law specifically said that foreigners have no rights what so ever under the constitution.

This country if Fcked.

 

“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. Zadvydas, 533 U.S. at 693.

----_-'s picture

"SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" - kushner

 

saidia arabia - not a threat

iran and lybia - threat.

 

sure trumptards

Fractal Parasite's picture

So, the court ruled that those who entered the country unlawfully have due process rights? Fine. Due process would lead to their deportation. Except Obama suspended immigration law by E.O.

The courts need to make up their mind: either the President may determine immigration policy by E.O. or he may not. Which is it, guys?

From U.S. Code § 1182 "Inadmissable Aliens":  (Federal Immigration Law)
(f) Suspension of entry or imposition of restrictions by President:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
https://www.law.cornell.edu/uscode/text/8/1182

FreezeThese's picture
FreezeThese (not verified) Fractal Parasite Feb 10, 2017 7:16 AM

You guys making legal conclusions/analysis are idiots. Donna will be up shortly to cry his wittle fingers off ... join him.

Long checks and balances

Dormouse's picture

There will be civil war in this country. The lawless, seditious people you support brought this on. Buckle up snowflakes, stay in your parents' basement, we have the guns.

USisCorrupt's picture

That's Beautiful.

I'm with TRUMP !

thinkmoretalkless's picture

Instead of secession isn't their a way to expell the left coast states? Then they can implement the leftist agenda and implode.

New_Meat's picture

9th circus isn't really a CA institution, no joy for 4.

Ballin D's picture

The supreme court reverses nearly all appeals from the 9th district. 70-90% depending on the period of time you're looking at

onewayticket2's picture

...but for now, OJ Simpson thinks this is just fantastic.  Another california based ruling that makes his look a bit less insane

Everyman's picture

Something from here on the reversal and vacating rates of the Federal Circuit courts from this document:

http://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/L...

I think these courts all need to be shut down.

Here are the Reversal and vacating rate of each court, seems like ALL these Circuit courts are circuses:

First Circuit Court  55.6%

Second Circuit       72%

Third Circuit           68%

Fourth                  61%

Fifth                     73%

Sixth                    73%

Seventh                56%

Eighth                   68%

Ninth                     80%

Tenth                    75%

Elenventh              60%

 

 

johngaltfla's picture

Many of the Circus Courts are packed with friends of politicians, aka, powerful Senators, bankers, and corporate contributors.

chunga's picture

This is the same judicial system that in the aftermath of foreclosuregate, pretty much ruled in favor of the banks ~ 7 million times in a row.

ReZn8r's picture

Declare Martial law in Kalifornina only. Lock thbe fucking place down tighter than a nuns cunt and make those idiots sweat.

BarkingCat's picture

While the court is in CA, only one of those judges is.

The other two in other states. One is in Hawaii.

Chief Wonder Bread's picture

Nuns cunt. Has a nice alliterative ring to it.

But yes. It's going to come to martial law sooner or later. It will either be a rightist or leftist (uniparty no longer relevant so I won't say Republican or Democrat) administration that pulls the "nuclear option" trigger. Might as well be a rightist one. 

RDanneskjöld's picture

The barbarians at the gates. Congress should gut and reconstitue all the circuit and distrect courts. They clearly have the constitutional authority.

wherewasi's picture

Great info.... thanks

 

Site's picture

Nearly time for rule of ropes

thetruthhurts's picture

Yea! and Fuck Google too!  I hear they are saving my deleted porn pages too!

xythras's picture
xythras (not verified) thetruthhurts Feb 9, 2017 8:12 PM

I bet TRUMP is dying right now for the power to FIRE those Socialist Judges. He can always fire them with a little help from his friends(FBI). Obama fired Scalia, remember.

YOU’RE FIRED: The White House Employee Responsible for Trump’s Information Security gets Sacked

http://dailywesterner.com/news/2017-02-09/youre-fired-the-white-house-em...

N2OJoe's picture

Donny, you control the NSA now. Ask(order) the NSA for their dirt on these so-called judges and "leak" it publicly.

Then issue a new EO banning ALL immigration. Eat that for discrimination you treasonous cucks.

DirkDiggler11's picture

Dude, BUY A FUCKING AD ON ZH TO PIMP YOUR FUCKING BLOG.
Are you really that broke? If so, why should we listen to a word you write ?
BUY THE FUCKING AD SPACE !

Gold...Bitches's picture

It's time for Trump to announce his plan to take the court to 15 justices and end run around these fuckers

Stuck on Zero's picture

How can the courts rule on what is a foreign policy decision?  That is exclusively the domain of the President and Congress.

therover's picture

We were fully primed prior to this fuck show. It's all timing now. 

Cman5000's picture

God help the Democratic party if something major pops off. 

Michelle's Hanging Chad's picture

What do you anticipate in terms of a false flag operation?

I've never quite understood the appeal of the Trinity-reminiscent Three-Equal-Branches idea, as if a bunch of old folks with liberal Ivy League "Law" (think Bastiat) credentials should sit in unelected lifetime judgement over our country's fate as we are systematically subverted by Marxists of various nafarious types (think The Harvard Black Book of Communism).

Trump would do well to publically behead or hang a few of these traitors as examples if they have the guts to stand by their rulings. They would certainly do the same to him if they had the opportunity.

brianshell's picture

Just like the befuddled Swedes, these liberal academics are in for a rude awakening.

https://www.youtube.com/watch?v=ms9NrdiJHRA

https://www.youtube.com/watch?v=aVD-aOvo-iU

https://www.youtube.com/watch?v=FycU1qSda-E

A whole lot of Christians and Jews have been beheaded or subjugated or coerced into converting since 700 and, like the terminator, they will not stop until you are dead or the whole world is under their disgusting inhuman rule.

wildbad's picture

..the Trinity checks and balances worked for a long time as a constraint on power hungry fucks. you're right,: its not perfect, but its better than most.

if there's is a better sstem I'd like to employ it today but barring that, its the game we're playing in.

a false flag could come from anywhere, internal external, a continuing david brock media matters slur and sludge campaign, a Priebus leak storm yet another school shooting fake of real.

the tactics are secondary to the fact that there is HUGE monex behind the defame / block / resist Trump campaign and they WILL NEVER STOP until they are stopped forcefully.

I thnk Trump knows this. I'm hoping that the papers are already prepared and the criminals are shivering.

pedos don't do well in prison

wildbad's picture

i'm primed so you could be right.

they had better do it right and out of sight of cell phones.

despite the fact that trump is in charge and would be n charge of the lockdown that would follow, i am in no mood for this to happen. it would be as injurious to genuine freedom as it would have been under obama or bush.

we have a real chance at resucing our republic from the sore losers and megalomaniacs who have been stealing power and reaming john Q for decades now.

we have Trump as our champion and the forces allied against him (US) are many. i hope he can do this all legally but as we see, precedent and law and tradition mean nothing to our enemies. look at Killary's smug tweet.

no quarter. find them all, try them and hang the guilty.

why is David Brock not enjoying a striped view right next to Soron and Billary?

Jeff! Jeff! Go get them!

wildbad's picture

i'm primed so you could be right.

they had better do it right and out of sight of cell phones.

despite the fact that trump is in charge and would be n charge of the lockdown that would follow, i am in no mood for this to happen. it would be as injurious to genuine freedom as it would have been under obama or bush.

we have a real chance at rescueing our republic from the sore losers and megalomaniacs who have been stealing power and reaming john Q for decades now.

we have Trump as our champion and the forces allied against him (US) are many. i hope he can do this all legally but as we see, precedent and law and tradition mean nothing to our enemies. look at Killary's smug tweet.

no quarter. find them all, try them and hang the guilty.

why is David Brock not enjoying a striped view right next to Soron and Billary?

Jeff! Jeff! Go get them!

cheech_wizard's picture

Surprised this made it onto Yahoo ...https://www.yahoo.com/news/exclusive-syrias-assad-tells-yahoo-news-some-...

Standard Disclaimer: How many terrorists does it take to commit an atrocity?