In a major setback for the Trump administration, a federal appeals court on Thursday declined its urgent request to restore the controversial executive order restricting refugees and travel by immigrants from a number of Muslim-majority countries.
Following a high-stakes court hearing on Tuesday, the U.S. Court of Appeals for the 9th Circuit decided to keep President Donald Trump's order from being enforced, which means one of his signature policy initiatives will remain in limbo as the litigation proceeds before thefederal judge in Seattle who temporarily blocked the order's implementation.
In an early-morning tweet prior to a law enforcement conference Wednesday, Trump appeared to prejudge the 9th Circuit's outcome and call into question the motivations of the judges who considered his travel ban.
"I don't ever want to call a court biased, so I won't call it biased," Trump said during a gathering of chiefs of police. "And we haven't had a decision yet. But courts seem to be so political, and it would be so great for a justice system if they would be able to ... do what's right. And that has to do with the security of our country, which is so important."
U.S. District Judge James Robart, the Seattle jurist who put a temporary nationwide restraining order on Trump's travel ban last week, said in his earlier ruling that there's a high likelihood the executive order would cause irreparable harm to the states of Washington and Minnesota if he didn't block it.
Amid an avalanche of similar lawsuits across the country, the two states sued in federal court last week, claiming that the travel restrictions violate, among other things, their residents' constitutional rights to religious freedom and equal protection of the laws. Once Robart put the ban on hold, signaling that the states may have a strong case on the merits, the administration quickly appealed.
Scores of states, tech companies and organizations weighed in on the controversy ahead of Tuesday's high-profile, YouTube-streamed 9th Circuit hearing, during which the two sides argued why the travel ban should or shouldn't remain in force, and whether, under the Constitution, Trump has near-unreviewable authority that the courts aren't allowed to second-guess.
Ahead of the 9th Circuit ruling, Robart issued a scheduling order on Tuesday, instructing the states and the Trump administration how the case would move forward. Washington and Minnesota must submit a legal brief on Thursday, the Trump administration's response brief is due next Wednesday, and then the states must reply by next Friday. Robart has yet to schedule a new hearing.
When he does, he'll determine whether his original restraining order should become a preliminary injunction, which, if granted, would leave Trump's travel ban on hold for even longer ― a result that would almost certainly be appealed all the way to the Supreme Court.
But at this early stage, an emergency appeal to the Supreme Court would face a big hurdle. Five justices would need to agree to reverse the 9th Circuit, and since the death of Justice Antonin Scalia last year, the court remains one member short.
This is a developing story and will be updated.