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US appeals court upholds suspension of Trump travel ban

President of the United States tweets: 'See you in court...'
Ruling from federal appeals court in San Francisco on contentious ban comes just three weeks into Trump's presidency (AFP)

A US federal appeals court panel on Thursday unanimously upheld a temporary suspension of President Donald Trump's order that restricted travel from seven Muslim-majority countries.

The ruling came in a challenge to Trump's order filed by the states of Washington and Minnesota. The US Supreme Court will likely determine the case's final outcome.

'No one is above the law, including the President of the United States'

-Sahar Aziz, law professor 

"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," the Ninth Circuit Court of Appeals in San Francisco ruled.

The ruling from the federal appeals court on the contentious ban, which was issued on 27 January with no prior warning and suspended a week later, comes just three weeks into Trump's presidency.

The White House said it had no immediate comment but on Twitter, Trump said in all caps: "See you in court, the security of the nation is at stake".

"We'll see them in court," Trump told reporters who had gathered outside his press secretary's office. "It's a political decision."

The president said he did not view the ruling as a major setback for his White House.

"This is just a decision that came down, but we're going to win the case," he said.

Reactions have poured in on social media. The Washington state attorney general's twitter account wrote "Denied" and "Unanimous" in all caps in response to Trump's tweet.

The ACLU tweeted in support of the ruling, saying it was "correct".

Sahar Aziz, a law professor at Texas A&M University, said the Ninth Circuit Court sent a clear message that Trump’s victory in November "did not translate into a blank check to run roughshod on the Constitution".

"No one is above the law, including the President of the United States," Aziz said.

She added that the court found that hundreds of people, including legal residents, from the seven banned countries were harmed by Trump’s order without being afforded due process, a right granted by the Fifth Amendment of the US Constitution.

"In its proper role as a check on executive action that may violate the US Constitution, the court applied the legal standard associated with the validity of temporary restraining orders,” Aziz told Middle East Eye in an email.

“After carefully examining whether the states of Washington and Minnesota would likely win their Fifth Amendment constitutional claims on the merits, the court upheld the temporary injunction on Trump's executive order." 

Democratic Congresswoman Debbie Dingell, who represents large Arab and Muslim communities in southeast Michigan, welcomed the court's decision.

"Today's unanimous ruling on President Trump's Executive Order reaffirms that this ban runs counter to our Constitution and our values as Americans," she said in a statement.

"National Security experts, business leaders and academia have warned that this ban endangers both our national security and our economy. While this ruling is a victory, uncertainty remains, and we will continue to fight to protect our Constitution with every ounce of our strength," it read.

The ruling from the appeals court, which follows a hearing on the case on Tuesday, does not resolve the lawsuit, but relates instead to whether Trump's order should be suspended while litigation proceeds.

Two members of the three-judge panel that ruled were appointed by former Democratic presidents Jimmy Carter and Barack Obama, and one was appointed by former Republican President George W Bush.

The court rejected the Justice Department’s argument that the president can legally amend immigration policy in the interest of national security without scrutiny from the judicial system.

In the ruling handed down on Thursday, the court wrote: "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."

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the judges wrote.

US Senator Kamala Harris of California hailed the decision as a triumph for American values.

“The 9th Circuit Court has denied Trump’s appeal to reinstate the #MuslimBan. Fight is not over but this is a great victory for our values,” she wrote on Twitter.

Trump's executive order barred entry for citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days and imposed a 120-day halt on all refugees, except refugees from Syria who are barred indefinitely.

Trump and other top administration officials have argued it is needed to keep out Islamic State militants and al-Qaeda fighters migrating from Middle East hotspots, insisting that time is needed to implement stricter vetting procedures.

The order sparked travel chaos and was met with condemnation by immigration advocacy groups.

In the earlier hearing on Tuesday, the judges appeared sceptical of the White House's defence of the sweeping order, which critics say was aimed at Muslims, in violation of US law.

Echoing Trump, Homeland Security Secretary John Kelly - who is in charge of enforcing the immigration ban - has said the courts do not understand the threat the country faces.

"In their world it is very academic, almost in a vacuum. In their courtrooms, they are protected by people like me," Kelly told lawmakers.

Trump's tough talk belies a political and legislative agenda that has already been beset by missteps and legal challenges.

The blowback from Trump's outbursts over the travel ban suspension showed no signs of abating, after his own Supreme Court nominee described the president's comments as "disheartening" and "demoralising".

Opposition Democrats echoed those criticisms, but also suggested the nominee, Neil Gorsuch, was trying to smooth his nomination by appearing as an independent voice.