U.S. appeals court refuses to reinstate Trump’s travel ban

Feb. 9, 2017 Updated Thu., Feb. 9, 2017 at 10:29 p.m.

From staff and wire reports

Canby rarely hears cases anymore. Now 85, he told The Associated Press two years ago that he felt sharp and healthy, but didn’t want to risk a job hazard that federal judges with lifetime appointments face: age-related mental decline. So it was unusual for the judge to hear oral arguments over the Trump travel ban.

Canby – a former U.S. Air Force lieutenant and Peace Corps worker in Africa who was appointed to the 9th Circuit by President Jimmy Carter in 1980 – is known to have a polite and respectful courtroom demeanor. He encourages attorneys to have interests outside the law and told a reporter in 2005 he was running two to three miles before starting his day. He has written extensively about Native American law. Among his more high-profile decisions was a 1988 ruling declaring the U.S. Army’s ban on gay soldiers unconstitutional and a 2000 decision that said the PGA Tour is covered by federal disability law and must provide a cart to golfer Casey Martin.

During oral arguments, he challenged the administration’s justification for the ban. Later, Canby appeared to come to the rescue of the attorney challenging the ban when another judge was grilling him about what evidence he had that the travel ban was motivated by anti-Muslim sentiment. Canby asked the attorney who had the legal burden of showing the likelihood of succeeding on their arguments in the case. The attorney responded that that burden was on the administration.

RICHARD CLIFTON

Clifton, nominated to the 9th Circuit by George W. Bush in 2001, is the second judge from Hawaii to serve on the 9th Circuit. He grew up in the Midwest, but moved to Hawaii to clerk for another 9th Circuit judge after graduating from Yale Law School in 1975. He is still based there.

Clifton, 66, was a lawyer for the Hawaii Republican Party, but has described himself as not having a pronounced political philosophy. He handled business and commercial litigation for a prominent Hawaii law firm and had never served as a judge before joining the 9th Circuit. He received nearly unanimous support for his nomination in the U.S. Senate. At his confirmation hearing, California Rep. Christopher Cox described Clifton as a lifelong Chicago Cubs fan, Cub Scout den leader, and dedicated husband and father who had some important credentials for being an appeals court judge: He refereed youth soccer. Since joining the court, Clifton has ruled in favor of a Los Angeles ordinance that required hotel operators to open their guest registries at the demand of police and called for a harsher prison sentence for a terrorist who plotted to blow up Los Angeles International Airport.

Of the three judges who heard arguments over the travel ban, Clifton had the toughest questions for the attorney representing the two states – Washington and Minnesota – challenging it. He asked what evidence the attorney had that the president’s travel ban was motivated by religious prejudice. At one point, Clifton pressed him, “Do I have to believe everything you allege and say, `Well, that must be right.” But Clifton also grilled the administration’s attorney, asking him whether he denied statements by Trump about banning Muslims. The attorney said he didn’t.

MICHELLE FRIEDLAND

At 44, Friedland is one of the two youngest federal appeals judges in the country. President Barack Obama appointed her in 2014, and during her confirmation hearing she received support from both parties.

Friedland was born in California and attended school in New Jersey, where her father worked as the president of a clothing company and her mother was a writing instructor and freelancer, according to Friedland’s 2000 wedding announcement in The New York Times.

She graduated with honors from Stanford University, studied at Oxford University on a Fulbright Scholarship and then got her law degree at Stanford University. She later clerked for U.S. Supreme Court Justice Sandra Day O’Connor.

In private practice, she represented major clients, including Berkshire Hathaway, Boeing and the University of California. She was recognized along with a handful of other members of her firm by the California Bar Association for pro-bono work defending the constitutionality of California’s ban on sexual orientation “conversion therapy.” She also represented same-sex couples challenging California’s gay-marriage ban.

With less than three years on the appeals court, a full picture of Friedland’s judicial philosophy has yet to emerge, some legal scholars say.

Of the three judges at Tuesday’s hearing, she appeared to be the most sympathetic to Washington state’s case, repeatedly questioning the Justice Department’s lawyer over the basis for the travel ban: “Have you offered any evidence to support this need you’re describing for the executive order, or are you really arguing that we can’t even ask about whether there’s evidence because this decision is non-reviewable?”

SAN FRANCISCO – A federal appeals court refused Thursday to reinstate President Donald Trump’s ban on travelers from seven predominantly Muslim nations, dealing another legal setback to the new administration’s immigration policy.

In a unanimous decision, the panel of three judges from the San Francisco-based 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.

DENIED. UNANIMOUS. PER CURIUM.
— WA Attorney General (@AGOWA) February 9, 2017

The appeals court rejected the federal government’s claim that it should immediately re-institute the ban on national security concerns.

“The government 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,” the panel wrote. “Rather than present evidence … the government has taken the position that we must not review its decision at all.

“We disagree.”

The court rejected the administration’s claim that it did not have the authority to review the president’s executive order.

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

The panel rejected requests by the federal government to put the ban back in place with a limited geographic scope. The federal government hasn’t proposed a workable alternative and the panel said, “It is not our role to try, in effect, to rewrite the Executive Order.”

Within minutes of the court issuing its ruling, Trump responded on Twitter, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017

In Olympia, Gov. Jay Inslee responded: “Mr. President, we just saw you in court, and we beat you. What is it about this you don’t understand?”

Inslee told a hastily called press conference he hoped the federal government would pause, reconsider and leave the lower court’s order in place. But if Trump “does not back down, we won’t either.”

We’ve seen how the temporary restraining order has helped reunite families and allowed people to come home and do their jobs. pic.twitter.com/8c9nsCvkoL
— Governor Jay Inslee (@GovInslee) February 10, 2017

That sentiment was echoed by Washington Attorney General Bob Ferguson, whose office filed the lawsuit, won the temporary restraining order last Friday in U.S. District Court in Seattle and defended that ruling on Tuesday.

“No one is above the law, not even the president,” Ferguson said in a news release minutes after the ruling was available. “The president should withdraw this flawed, rushed and dangerous Executive Order which caused chaos across the country.”

“Bottom line: This is a complete victory for the state of Washington.” -BF
— WA Attorney General (@AGOWA) February 10, 2017

U.S. District Judge James Robart halted the ban temporarily after Washington and Minnesota sued. The states argued the 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.

Justice Department lawyers appealed to the 9th Circuit, arguing that the president has the constitutional power to restrict entry to the U.S. and that the courts cannot second-guess his determination that such a step was needed to prevent terrorism.

Both sides faced tough questioning during an hour of arguments Tuesday conducted by phone – an unusual step – and broadcast live on cable networks, news 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.

Robart 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 the states’ residents, damage their public universities and reduce their tax base. That put the executive order on hold while the lawsuit works its way through the courts.

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.

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.

Staff writer Jim Camden and the Associated Press contributed to this report.

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