In another legal setback for President Trump, the 9th Circuit Court of Appeals unanimously denied an appeal to reinstate the administration’s extreme vetting executive order.
The three-judge panel handed down the decision Thursday afternoon, less than a week after Seattle-based U.S. District Judge James Robart granted a temporary restraining order in Washington state’s lawsuit against the President, putting his policy on hold nationwide.
The appellate judges, citing lack of evidence by the federal government and serious allegations raised by the state, faulted the Department of Justice’s argument that executive orders should not be reviewed.
“Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack authority to review executive actions in those arenas for compliance with the Constitution,” read the decision in part.
Full document of decision: Appeals court ruling
“I would not have filed this action unless I expected to win,” said Washington Attorney General Bob Ferguson of his confidence in the state’s larger case.
Washington state Governor Jay Inslee applauded the ruling calling it “a victory for Washington State and indeed the entire country.”
President Trump, speaking to reporters Thursday evening, called the decision “political.”
“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,” said Trump.
“We’ve seen him in court twice, and we’re two for two. The future of the constitution is at stake,” countered Ferguson.
“We respect that the president has broad authority when it comes to issuing executive orders, but they still have to follow the constitution. That’s the bottom line. We firmly believe this executive order does not.”
A spokesperson for the Department of Justice said attorneys are reviewing their options. An emergency appeal was not filed Thursday night, but the case is likely to end up before the U.S. Supreme Court.
So far, the legal battle has focused on the temporary restraining order granted last Friday. However, Washington State’s larger case must still be argued before the Western Washington U.S. District Court.
The Attorney General’s Office filed its suit days after the immigration executive order was signed, alleging religious discrimination, due process, and equal protection violations.
The suit also claims harms and damages incurred by the state, upon the implementation of the executive order which suspended immigration from seven predominately Muslim countries for 90 days, as well as paused the U.S. refugee program for 120 days, and indefinitely suspended the Syrian refugee program.
Confusion and chaos following the initial implementation of the order sparked bi-partisan criticism.
“The way the Executive Order was developed and implemented did not uphold our values and disrupted the lives of many individuals who legally deserve to be here,” said Republican Congressman Dave Reichert of the 8th District in a statement, following Thursday’s ruling.
“Congress and the Administration must work together to implement legislation that keeps Americans safe while respecting religious freedom and creating a way forward for those who wish to come here legally and contribute to our communities,” Reichert’s statement continued.
The Department of Justice argued on Tuesday that the seven countries affected by the executive order were designated on areas of concern by Congress and the previous administration.
Solicitor General Noah Purcell argued that public statements made on the campaign trail by then candidate Trump reveal intent of discrimination against Muslims.
“It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles,” argued August Flentje, Special Counsel to the Assistant U.S. Attorney General.
“That is very troubling second guessing of national security decision made by the President.”
The appeals judges pressed Flentje for evidence, but he failed to produce specific examples during oral arguments.
No additional evidence was submitted to the judges before the ruling, according to a DOJ spokesperson.
On Thursday, Purcell told reporters that discovery and potential depositions during the full court case could provide critical insight into the events leading up to the executive order.
“We would like to get some answers about what really was the order of events,” said Purcell. “We’ve heard a number of different stories from the administration about who did what and when, and whether this was even reviewed by the national security agencies.”
Trump responded to the ruling on Twitter, saying “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!— Donald J. Trump (@realDonaldTrump) February 9, 2017
Related: Oregon backs Washington state lawsuit against Trump immigration orderGovernment lawyers argued that the ban was a "lawful exercise" of the president's authority and that the seven countries have raised terrorism concerns.