SAN FRANCISCO — A federal appeals court refused Thursday to reinstate President Donald Trump’s ban on travelers from seven predominantly Muslim nations.
The panel of three judges from the 9th U.S. Circuit Court of Appeals declined to block a lower-court ruling that suspended the ban and allowed previously barred travelers to enter the U.S. An appeal to the U.S. Supreme Court is possible.
U.S. District Judge James Robart in Seattle issued a temporary restraining order halting the ban last week after Washington state and Minnesota sued. The ban temporarily suspended the nation’s refugee program and immigration from countries that have raised terrorism concerns.
Justice Department lawyers appealed to the 9th Circuit, arguing that the president has the constitutional power to restrict entry to the United States and that the courts cannot second-guess his determination that such a step was needed to prevent terrorism.
The states said Trump’s travel ban harmed individuals, businesses and universities. Citing Trump’s campaign promise to stop Muslims from entering the U.S., they said the ban unconstitutionally blocked entry to people based on religion.
Both sides faced tough questioning during an hour of arguments Tuesday conducted by phone — an unusual step — and broadcast live on cable networks, newspaper websites and social media. It attracted a huge audience.
The judges hammered away at the administration’s claim that the ban was motivated by terrorism fears, but they also challenged the states’ argument that it targeted Muslims.
“I have trouble understanding why we’re supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected,” Judge Richard Clifton, a George W. Bush nominee, asked an attorney representing Washington state and Minnesota.
Only 15 percent of the world’s Muslims are affected by the executive order, the judge said, citing his own calculations.
“Has the government pointed to any evidence connecting these countries to terrorism?” Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked the Justice Department attorney.
The lower-court judge temporarily halted the ban after determining that the states were likely to win the case and had shown that the ban would restrict travel by their residents, damage their public universities and reduce their tax base. Robart put the executive order on hold while the lawsuit works its way through the courts.
UNLV law professor Michael Kagan called the decision “a significant setback for the Trump administration.”
“It is significant that it is a unanimous decision because the panel included two Democratic appointees and one Republican appointee,” he noted. “… The district court judge was also a Bush appointee, so in a sense, there have been four judges in this case who ruled the same way.”
He also said that “unlike the district court, this court went into the merits of the case in a fair amount of detail” before deciding to leave the restraining order intact.”
After that ruling, the State Department quickly said people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — with valid visas could travel to the U.S. The decision led to tearful reunions at airports around the country.
Critics of the executive order praised the judges for fulfilling their constitutional role.
“This is why courts matter,” said Laura Martin, associate director of the Progressive Leadership Alliance of Nevada. “It’s a part of the system of checks and balances, and the judiciary acts on behalf of the people and not at the pleasure of the president.”
The Supreme Court has a vacancy, and there’s no chance Trump’s nominee, Neil Gorsuch, will be confirmed in time to take part in any consideration of the ban.
The ban was set to expire in 90 days, meaning it could run its course before the court would take up the issue. The administration also could change the order, including changing its scope or duration.
Review-Journal staff writer Lucy Hood contributed to this report.