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.