Judges upheld order issued last week to prevent 90-day travel ban from seven Muslim-majority countries and 120-day freeze on US admission of any refugees

Hezam Abdallah, 11, of Yemen, who was among those stranded in Djibouti when Trump ordered his travel ban, arrives at Los Angeles International Airport on Thursday. Photograph: David Mcnew/AFP/Getty Images

By Ben Jacobs in Washington

Donald Trump’s controversial travel ban suffered a major setback on Thursday after a panel of three judges upheld a temporary ruling which had halted the president’s limit on people arriving from seven Muslim majority countries.

In its unanimous ruling, the three judges on the ninth circuit court of appeals upheld the temporary restraining order, which was issued by Judge James Robart, a federal district court judge in Washington state, and has blocked the enforcement of many key parts of the executive order.

The court found that “the government has not shown a stay is necessarily to avoid irreparable injury.” In particular, its ruling noted “the government has pointed 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.”

Almost immediately, Trump tweeted his response: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

Thursday’s ruling does not end all litigation over the executive order, which sparked international outcry when it was first issued. Instead, it simply means that its provisions – which include a 90-day travel ban from seven Muslim-majority countries, a 120-day freeze on admission of any refugees into the United States, as well as indefinite halt to admitting any refugees from Syria – cannot be enforced again as the legal battle moves forward. There are roughly 20 lawsuits against the travel ban currently making their way through courts in various states.

The appeals court decision follows a hearing Tuesday night, where lawyers for the state of Washington, which was challenging the ban, argued with attorneys for the justice department.

August Flentje, the lawyer for the federal government, argued that the ban was “plainly constitutional,” noting that Congress has granted the president the authority to suspend certain classes of immigrants. However, he additionally argued that the decision should not be subject to judicial review, noting that “judicial second-guessing of the president’s national security determination in itself imposes substantial harm on the federal government and the nation at large”.

The court rejected much of this argument in its ruling. The panel wrote “although courts owe considerable deference to the president’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action”.

In contrast, Noah Purcell, the solicitor general of Washington state who was arguing to keep the injunction, cited Trump’s campaign trail promise to impose “a total and complete shutdown on Muslims entering the United States” and raised the specter of religious discrimination.

The court, though, did not base its decision on this argument, although it noted “we reserve consideration of these claims until the merits of this appeal have been fully briefed”. Instead, it based its ruling on the fact that it did not find that the government had not shown it was sufficiently likely to succeed in a court hearing on the question of whether the executive order restricted an effected individual’s ability to travel without due process.

The decision immediately set off a political firestorm on both sides of the aisle. Donna Brazile, the chair of the Democratic National Committee, celebrated the decision in a statement. “This is a massive blow to the White House. The court upheld that we do not discriminate based on religion. That is what terrorists do, and what terrorists want us to do.”

In contrast, Republican Senator Tom Cotton from Arkansas railed against the ruling. “No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president. This misguided ruling is from the ninth circuit, the most notoriously left-wing court in America and the most reversed court at the supreme court,” said Cotton in a statement.

Source: The Guardian