US appeals court rules 3-0 against travel ban

US President Donald Trump suffered more than a legal defeat of his immigration ban Thursday night.

He ran smack into the limits of executive power.

Three federal judges unanimously refused to restore the White House's controversial travel ban, laying down the most significant marker yet that Trump's vision of an administration rooted in the muscular use of executive power -- similar to that he enjoyed as a business leader -- will not go unchallenged.

In a stinging rebuke, the 9th Circuit Court of Appeals rejected the administration's argument that the judiciary lacked the authority to block the travel ban as "contrary to the fundamental structure of our constitutional democracy."

The tone and content of the decision immediately called into question Trump's gamble in enacting such a fundamental reshaping of the nation's immigration laws through presidential order rather than a law debated and passed by Congress.

It is now certain that the saga of the immigration ban, which has consumed the presidency for two of its three weeks and is distracting from other priorities, will run on indefinitely with possible damaging consequences for the young administration.

But the president is a long way from admitting a final defeat. Drawing on the pugilistic instincts that sustained his business career, he dug in for a counter attack, reports CNN.

A defiant Trump quickly pledged to battle on, tweeting within minutes of the decision: "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!"

"It's a political decision, we're going to see them in court, and I look forward to doing that," he told reporters at the White House. "We have a situation where the security of our country is at stake and it's a very very serious situation."

The Justice Department had asked the Ninth Circuit Court of Appeals to restore the measure on an emergency basis, but the three-judge panel instead maintained the suspension ordered by a federal judge in Seattle.

"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 judges ruled.

Trump's decree summarily denied entry to all refugees for 120 days, and travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days. Refugees from Syria were blocked indefinitely.

The new administration argued the ban was needed to prevent Islamic State and al-Qaeda fighters from reaching US soil, but it prompted travel chaos and was roundly rejected by immigration advocacy groups.

Critics say the measure targeted Muslims in violation of US law.

Democratic opponents hailed the court decision as an affirmation of the principles on which the nation is based and a precursor of likely pitched legal battles to come on the extent of Trump's power.

Trump's election rival Hillary Clinton tweeted simply: "3-0."

'DISGRACEFUL'

Trump denounced as "disgraceful" the appellate court's decision.

He reacted in an early morning tweet that selectively quoted from a post on Lawfare, a blog on law and national security issues, reports AFP.

The blog post found it "remarkable" that the appellate panel "did not even bother to cite" a key US legal statute that authorises the president to suspend entry to the United States of all or any class of aliens he deems detrimental to US interests.

After quoting the Lawfare passage in his tweet, Trump declared the appellate court's conclusion: "A disgraceful decision!"

Trump neglected to say, however, that the blog goes on to conclude that the appellate court reached the correct decision in upholding a lower court judge's suspension of the ban.

Lawfare said the decision was right "for the simple reason that there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks."

WHAT'S NEXT?

Now, the case could end up in the Supreme Court.

It could still rule in favor of the administration, either on the merits of the case or the issue of standing of foreigners on whose behalf the challenge to Trump's executive order was brought by the state of Washington.

But the possibility of the nation's highest bench being called upon to clear up a growing legal imbroglio will also open a new political fight. The Supreme Court is currently lacking its ninth member owing to the prolonged Washington standoff following the death last year of Justice Antonin Scalia.

Should the Court hear the case and split 4-4, the ruling of the 9th Circuit would be affirmed. That fact alone adds heat to the confirmation duel looming over the nomination of Trump's first Supreme Court pick, Neil Gorsuch.

Republicans now have even more of an incentive to ram the confirmation through the Senate using the "nuclear option" to sidestep a Democratic filibuster. Democrats are even less likely to cooperate with a swift process.

COURT'S LOGIC

The 9th Circuit decision, however, seemed designed to shape the future arguments about the content of the executive order and the administration's attempts to significantly stiffen the government's anti-terrorism campaign.

It went far further in its ruling than the simple question of the stay on the travel ban imposed by a lower court, taking pains to dismantle the administration's assertion that the travel ban was vital to protecting Americans against an influx of foreign terror threats from the seven named nations, Iran, Iraq, Somalia, Sudan, Yemen, Libya and Syria.

"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," the ruling said.

"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."

The San Francisco court said aspects of the public interest favored both sides, highlighting the "massive attention" the case had drawn.

"On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies," the ruling said.

"And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination."

While acknowledging that the Seattle judge's ruling "may have been overbroad in some respects," the panel said it was not their "role to try, in effect, to rewrite the executive order."

"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," the court said.

'NOT EVEN THE PRESIDENT'

Civil rights campaigners and state officials applauded the decision, vowing to fight on until the executive order is permanently scrapped. For now, it means travelers with valid visas can continue to enter the country.

Washington Governor Jay Inslee, whose administration sued for the measure to be blocked, hailed a victory for his state and the country, arguing that the ruling showed "no one is above the law, not even the president."

Human Rights Watch senior researcher Grace Meng called the decision "an important declaration of judicial independence, which is crucial for checking harmful overreach by the president."

Trump had blasted the original suspension in a series of fiery tweets and public statements.

7 key take-aways from ruling 

1. The three judges think that they are well within their rights to check the president's authority on matters of immigration and national security, and the government's suggestion to the contrary is undemocratic.

2. The court isn't buying -- as Trump has suggested -- that the impact of the order was limited to extra vetting for 109 people.

3. The court thinks that the states of Washington and Minnesota have actual harms they can sue over.

4. The court isn't sure -- at this stage -- whether there is proof that the executive order discriminates against Muslims.

5. The court doesn't think the government needs to immediately reinstate the ban to protect national security.

6. The government says green-card holders aren't impacted by the order anymore because of guidance from the White House counsel. The court says it can't take that to the bank.

7. The court wouldn't even give the government its fallback position -- a modification of the earlier judge's suspension of   the ban.