WASHINGTON — A federal appeals court denied the government's request to allow it to enforce President Trump's travel and refugee ban executive order while the case challenging the ban makes its way through the courts.

"[T]he Government has failed to establish that it will likely succeed on its due process argument in this appeal," the US Court of Appeals for the Ninth Circuit ruled in an unsigned, "per curiam" order. None of the three judges hearing the case dissented from the decision.

Specifically, the court held that the Justice Department did not show it is likely to succeed on its defense of claims raised by Washington and Minnesota about the lack of due process provided to lawful permanent residents — as well as to "other persons who are in the United States, even if unlawfully" — under the president's executive order.

Because the court held in favor of the states on that point, it did not rule on the religious discrimination claim raised in the case. (At the arguments before the Ninth Circuit earlier this week, Judge Richard Clifton expressed skepticism about the religious discrimination claim.)

Notably, it was in this portion of the decision that the appeals court addressed the question of whether the states could introduce Trump's various comments "about his intent to implement a 'Muslim ban.'"

The court noted that "[i]t is well established" that such evidence can be introduced in equal protection and Establishment law challenges — likely a signal to the Justice Department, which argued against its inclusion, and to other courts about the Ninth Circuit's view of the matter. Nonetheless, to the extent the language goes beyond a restatement of existing law, the language is not likely binding precedent, given that it was not essential to the ruling.

The court then proceeded to discuss the other portion of the ruling. "The Government has not shown that a stay is necessary to avoid irreparable injury," the court held, secondarily. "By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple 'other parties interested in the proceeding.'"

Failing to meet either of those standards, the three-judge panel ruled — in an opinion that rejected nearly all of the Justice Department's arguments in defense of the ban — that US District Judge James Robart's Feb. 3 order halting enforcement of major parts of the ban would remain in place. In addition to Clifton, Judges William Canby and Michelle Friedland participated in the consideration of the Justice Department's request.

The Justice Department now could seek a stay of Robart's order at the Supreme Court, a move that would start with a request made to Justice Anthony Kennedy, who could then refer the matter to the full court. President Trump's immediate reaction on Twitter suggested that further action would be forthcoming.