Trump Travel Ban Still On Hold After Appeals Court Decision

DAVID GREENE, HOST:

President Donald Trump says he is going back to court after losing another round in the fight over his travel ban.

STEVE INSKEEP, HOST:

If you remember, this is the closely watched case over the president's executive order that suspended the U.S. refugee program and also banned travel to the United States by people from seven mostly Muslim countries. Yesterday, a three-judge panel of the 9th Circuit Court of Appeals in San Francisco decided to leave in place a temporary restraining order that blocked the president's ban.

GREENE: And the president blasted that unanimous decision as political.

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PRESIDENT DONALD TRUMP: We have a situation where the security of our country is at stake, and it's a very, very serious situation. So we look forward, as I just said, to seeing them in court.

GREENE: Now, here's the response from Washington Attorney General Bob Ferguson who brought the legal challenge against the president's order.

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BOB FERGUSON: We have seen him in court twice, and we're 2 for 2. And in my view, the future of the Constitution is at stake. We respect that the president has broad authority when it comes to issuing executive orders. But - but - they still have to follow the Constitution. That's the bottom line.

GREENE: Our colleague Joel Rose has been reading the ruling from the court in California and following this case. He joins us on the line. Joel, good morning.

JOEL ROSE, BYLINE: Good morning.

GREENE: So the president of the United States saying this is a serious situation, the security of the country is at stake - did this court just not buy his Justice Department's argument?

ROSE: Well, the Department of Justice was asking the court to overturn the restraining order imposed last week by the judge in Seattle. And the Department of Justice's lawyers, as you say, argue that this is an urgent issue of national security. They said in briefings and again during oral arguments on Tuesday that courts lack the authority to review the president's travel ban. But the court really did not seem to believe that the argument that the president's order is unreviewable. Let me read you a quote from the ruling.

GREENE: Yeah.

ROSE: Quote, there is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

GREENE: Love the legalese - claimed unreviewability. So why did the court decide that in fact this executive order is reviewable by the courts?

ROSE: Well, they cited a long history of precedent, and they seemed more impressed by the argument made by the plaintiffs here, the states of Washington and Minnesota who brought the challenge. The states are arguing that there were real people and businesses and universities that were hurt by the travel ban - for example, professors from the state university system who are overseas when that order took effect and could not get back into the country. The court seemed pretty sympathetic to that argument. The plaintiffs also argue that the travel ban order is unconstitutional because it discriminates against Muslims. The government denies that. And the court really did not get to that issue in this ruling because I should emphasize here that they are not ruling on the merits of the case at this point.

GREENE: OK. So that's an important point here. Some of these larger issues about security, about whether or not this is discrimination, they came up, but the court really wasn't dealing with those.

ROSE: Not yet. The issue before the court this week was fairly narrow - whether or not to overturn the restraining order. And in the end, the decision to leave it in place was unanimous. The court just did not seem convinced by the government's argument that the executive order is needed to protect national security. Here's another quote from the ruling. Quote, "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."

GREENE: OK. And we're probably going to be hearing much more of these arguments as this goes on. It looks like this will be appealed. President Trump already tweeting, see you in court in all caps. So what's next?

ROSE: Well, I guess the question really now is which court. The Department of Justice issued a more measured statement saying that they are, quote, "considering our options," unquote. Legal experts say that the government could appeal to the full 9th Circuit Court of Appeals or straight to the U.S. Supreme Court. But there's no guarantee that either court would take the case. The government could also take this case back to the lower court in Seattle, which has set up a fast-track briefing schedule and try to build some evidence to support the travel ban in the lower court.

GREENE: OK, that is NPR's Joel Rose. Joel, thanks a lot.

ROSE: You're welcome.

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