NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Thursday, February 9th, 2017

Trump loses again: 9th Circuit refuses to reinstate discriminatory travel ban

Don­ald Trump’s uncon­sti­tu­tion­al and dis­crim­i­na­to­ry trav­el ban will remain unen­force­able for the time being, the Ninth Cir­cuit Court of Appeals ruled today.

In a unan­i­mous deci­sion, a three judge pan­el ruled that Trump’s regime “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.” The deci­sion by U.S. Dis­trict Court Judge James Robart to grant a tem­po­rary restrain­ing order there­by stands.

“No one is above the law, not even the Pres­i­dent,” said Wash­ing­ton State Attor­ney Gen­er­al Bob Fer­gu­son in a state­ment laud­ing the deci­sion, reit­er­at­ing com­ments that he made last week. “The Pres­i­dent should with­draw this flawed, rushed and dan­ger­ous Exec­u­tive Order, which caused chaos across the coun­try. If he refus­es, I will con­tin­ue our work to hold him account­able to the Con­sti­tu­tion.”

“Bot­tom line: This is a com­plete vic­to­ry for the State of Wash­ing­ton,” Fer­gu­son added dur­ing a press con­fer­ence fol­low­ing the release of the rul­ing. “We are a nation of laws. And those laws apply to every­one in the coun­try.”

Fer­gu­son not­ed that the 9th Cir­cuit had express­ly reject­ed the inJus­tice Depart­men­t’s argu­ment that Trump’s order was unre­view­able.

“There is no prece­dent to sup­port this claimed unre­viewa­bil­i­ty,” the judges wrote, “which runs con­trary to the fun­da­men­tal struc­ture of our con­sti­tu­tion­al democ­ra­cy.” They point­ed read­ers to Boume­di­ene v. Bush (2008), “reject­ing the idea that,  even by con­gres­sion­al statute, Con­gress and the Exec­u­tive could elim­i­nate fed­er­al court habeas juris­dic­tion over ene­my com­bat­ants, because the ‘polit­i­cal branch­es’ lack “the pow­er to switch the Con­sti­tu­tion on or off at will”.

“With­in our sys­tem, it is the role of the judi­cia­ry to inter­pret the law, a duty that will some­times require the “[r]esolution of lit­i­ga­tion chal­leng­ing the con­sti­tu­tion­al author­i­ty of one of the three branch­es… We are called upon to per­form that duty
in this case,” the 9th Cir­cuit judges declared.

“Today’s deci­sion to uphold Judge Robart’s order is a vic­to­ry for Wash­ing­ton State and indeed the entire coun­try,” said Wash­ing­ton State Gov­er­nor Jay Inslee.

“The deci­sion under­scores the seri­ous con­sti­tu­tion­al issues with Pres­i­dent Trump’s exec­u­tive order and empha­sizes what Attor­ney Gen­er­al Fer­gu­son has said through­out this case: that no one is above the law, not even the pres­i­dent.”

“Since the restrain­ing order was issued, in our state we’ve seen a Soma­li man reunit­ed with his wife, an Amer­i­can cit­i­zen. An Iraqi glob­al health leader able to rejoin his col­leagues at the Uni­ver­si­ty of Wash­ing­ton. And a grad­u­ate stu­dent study­ing HIV vac­cines to return to con­tin­ue his impor­tant work. I’m proud of that Wash­ing­ton is a nation­al leader in this fight. We were the first state to stand against this exec­u­tive order. But all Amer­i­cans need to be will­ing to stand and fight for our democ­ra­cy, every­where, every time, and in every way it is threat­ened.”

“I am glad the 9th Cir­cuit Court of Appeals thinks Wash­ing­ton state got it right,” said Sen­a­tor Maria Cantwell. “Thanks to the Wash­ing­ton State Attor­ney Gen­er­al, Wash­ing­ton state busi­ness­es and all involved in the U.S. Dis­trict Court case, these impor­tant Con­sti­tu­tion­al issues will be addressed. And in the mean­time, trav­el will con­tin­ue and fam­i­lies can be reunit­ed.”

“Today’s rul­ing heart­ens all who believe in the rule of law,” said King Coun­ty Exec­u­tive Dow Con­stan­tine. “The actions by this pres­i­dent run counter to our community’s core val­ues: com­pas­sion, oppor­tu­ni­ty, and equi­ty. We will not rest until this wrong-head­ed exec­u­tive action is per­ma­nent­ly reversed.”

“This is a big win today for the Con­sti­tu­tion,” said Wash­ing­ton State Demo­c­ra­t­ic Chair Tina Pod­lodowsk, echo­ing the state­ments of oth­er Demo­c­ra­t­ic lead­ers.

“As a daugh­ter of refuges from World War II, I want to per­son­al­ly thank those who led this effort – Attor­ney Gen­er­al Bob Fer­gu­son, Gov­er­nor Jay Inslee, and Solic­i­tor Gen­er­al Noah Pur­cell, and of course every­one in the Office of the Attor­ney Gen­er­al. Their ded­i­ca­tion to human rights and equal­i­ty has made pos­si­ble this win today.”

“I espe­cial­ly want to thank the mil­lions of Amer­i­cans – Democ­rats and Repub­li­cans alike — who have stood up in protest of Trump’s order,” she added.

“This is not just a move­ment of lawyers and elect­ed offi­cials – this is a move­ment of the peo­ple. It’s inspir­ing to see how the Amer­i­can peo­ple react to injus­tice per­pe­trat­ed against our Mus­lim broth­ers and sis­ters. The record-break­ing crowds march­ing in the streets are a tes­ta­ment to America’s com­mit­ment to our val­ues, our con­sti­tu­tion, and to the promise engraved on the Statute of Lib­er­ty, and no exec­u­tive order from the White House can shat­ter that.

“While this case isn’t over yet, every court vic­to­ry we have along the way makes it clear­er that our law and Con­sti­tu­tion stand on the side of jus­tice and equal­i­ty – not on the side of Trump.”

NPI thanks the 9th Cir­cuit for its sen­si­ble rul­ing today and urges Jus­tice Antho­ny Kennedy and his sev­en col­leagues on the Supreme Court to sus­tain it should Trump order the Jus­tice Depart­ment to appeal.

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