Ninth Circuit Court of Appeals upholds TRO against President Trump’s January 27, 2017 executive order

On February 9, a three-judge panel of the U.S. Ninth Circuit Court of Appeals unanimously upheld a temporary restraining order (TRO) against President Trump’s January 27 executive order preventing travelers from seven Muslim-majority countries from entering the U.S.

President Trump’s executive order banned for 90 days entry of individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen into the United States. The states of Washington and Minnesota challenged the executive order as unconstitutional, and a district court issued a temporary restraining order. The U.S. government asked the Ninth Circuit for an emergency stay of the TRO.

In denying the emergency motion for a stay, the appellate panel said that the states had shown that even temporary reinstatement of the executive order would cause substantial injury. The judges said that the government had not provided evidence that any alien from any of the nations targeted by the order had perpetrated a terrorist attack in the United States. As to the Trump administration’s argument that the courts did not have the right to review the order, the panel said that that claim “runs contrary to the fundamental structure of our constitutional democracy.”

President Trump initially vowed to fight the decision in court, and a Ninth Circuit judge requested that the full court vote on whether to reconsider the decision reached by the panel of three judges. However, Trump later said he would rescind the executive order and issue a new order tailored to the Ninth Circuit’s decision. The Justice Department filed a brief on February 16 stating that it did not need a larger Ninth Circuit panel to rehear its emergency challenge to the TRO, as a new executive order would be forthcoming.

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