A federal appeals court on Thursday bluntly rejected President Donald Trump's attempt to revive his controversial travel ban executive order, giving no ground under unusual public pressure from the president himself.

A three-judge panel of the 9th Circuit Court of Appeals Thursday unanimously turned down the Justice Department’s request to lift a Seattle-based judge’s restraining order, blocking authorities from carrying out the limits Trump sought to impose on travel to the U.S. by citizens of seven majority-Muslim countries and by refugees from around the globe.


In an unsparing 29-page ruling, the judges said Trump's order appears to deprive many affected foreigners of their rights without providing the legal process the Constitution requires.

"The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process," the 9th Circuit ruling says.

The judges also appeared to bristle at the starkness of some of the legal arguments Justice Department lawyers offered in the case, including a contention that orders such as Trump's should not be subject to scrutiny by the courts.

"The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections," the court wrote. "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. ... The Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context."

The White House could take the issue to the Supreme Court, but the prospects for such an appeal are uncertain due in part to the high court being short a justice and split evenly between Democratic- and Republican-appointed justices.

On Thursday evening, Kellyane Conway — counselor to the president — said the administration is “fully confident” they will eventually prevail.

“This ruling does not affect the merits at all,” Conway said on Fox News. “It is an interim ruling, and we are fully confident that now that we will get our day in court and have an opportunity to argue this on the merits that we will prevail.”

The court’s opinion was issued “per curiam,” meaning no specific author was identified. However, all three judges joined the ruling: Jimmy Carter appointee William Canby Jr., George W. Bush appointee Richard Clifton and Barack Obama appointee Michelle Friedland.

The unanimous decision was somewhat unexpected. During oral arguments on the case Tuesday, Clifton sounded open to ruling for Trump at least in part. Clifton said he had “serious concerns” about the breadth of the district court restraining order.

Trump quickly responded to the ruling on Twitter, vowing to keep up the legal fight to implement his order. "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" he wrote.

A Justice Department spokeswoman was noncommittal Thursday about a Supreme Court appeal. "The Justice Department is reviewing the decision and considering its options," the spokeswoman said.

The 9th Circuit ruling largely avoided the most explosive issue in the case — whether Trump's order was unconstitutionally tainted by anti-Muslim bias. The decision says it is "well established" that when considering the legality of government actions courts can consider public comments such as Trump's public call for a ban on immigration by Muslims. However, the appeals judges decided to reserve judgment on that issue "in light of the sensitive interests involved" and other factors, the ruling says.

The decision also flatly rejected one move the administration made to try to salvage the executive order: announcing that it did not apply to green card holders.

Initially, the White House said it did apply and arriving green card holders were being granted case-by-case waivers. Later, Homeland Security Secretary John Kelly issued a blanket waiver for green card holders.

Then, last Wednesday, White House Counsel Don McGahn issued what he called “authoritative guidance” that the order never actually covered U.S. permanent residents at all.

The 9th Circuit panel did not find that convincing.

“The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely,” the panel wrote.

The judges also said it was far from clear that McGahn’s guidance was binding on other government officials.

“The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings,” the court said.

The 9th Circuit judges also flatly dismissed a fallback position taken by government lawyers: that the appeals court could rein in the restraining order so it protected only foreigners already in the U.S. or those who have visited before, such as student-visa holders in the middle of a course of study. That would have allowed Trump to suspend the refugee program, while providing more protection for foreigners with established ties to the U.S.

"That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well," the panel wrote. "There might be persons covered by the TRO who do not have viable due process claims, but the Governments proposed revision leaves out at least some who do....More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order."

In comments Wednesday, White House press secretary Sean Spicer seemed to make a preemptive move to soften the blow of a 9th Circuit defeat for the administration.

Spicer stressed that the appeals court panel was considering a “narrow” procedural issue and he said federal government lawyers looked forward to being able to defend Trump’s policy “on the merits” in future court proceedings.

The appeals court ruling is not a final one on the legality of Trump’s order. Litigation on that subject will go forward before the Seattle judge and in about 20 other legal challenges pending across the country.

The court’s ruling Thursday followed a highly unconventional campaign of public criticism by the president, who repeatedly warned that judges involved would be blamed if the U.S. suffered a terrorist attack from migrants who entered the country while his order was lifted.

In his public statements prior to the latest court decision, Trump also appeared to accuse the judges of political bias.

During a speech Wednesday, Trump twice called the 9th Circuit arguments on the issue “disgraceful” and he suggested judicial resistance to his order was the product of political bias.

“If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!” he tweeted Wednesday.

“Big increase in traffic into our country from certain areas, while our people are far more vulnerable, as we wait for what should be EASY D!,” the president added, apparently arguing that the court decision should be an easy victory for the White House.

Trump’s shots at judges handling the case drew bipartisan criticism. Even the president’s Supreme Court nominee, Judge Neil Gorsuch, indicated disagreement. He told senators this week that he found such attacks on judges to be “disheartening” and “demoralizing.”

White House officials initially confirmed Gorsuch's comments, but press secretary Sean Spicer insisted Thursday that the nominee was speaking in general terms about invective directed at the judicial and was not addressing Trump’s statement.

Trump’s Jan. 27 order banned travel to the U.S. by citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen pending a 90-day review of current vetting procedures. The State Department quickly followed up on the president’s order by “provisionally” canceling about 60,000 visas held by nationals of those countries.

However, after Seattle-based U.S. District Court Judge James Robart blocked Trump’s directive on Friday at the request of the states of Washington and Minnesota, the State Department declared that authorities would honor those visas as long as they were not physically voided.

Trump’s order also put a 120-day hold on grants of U.S. visas to refugees worldwide and indefinitely suspended the issuance of refugee visas to those fleeing the civil war in Syria.