San Francisco Appeals Court Upholds Stay on Trump’s Travel Ban—For Now

The Trump administration’s travel ban will remain on a temporary hold under an order issued today by a federal appeals court in San Francisco, which held that the government had failed to make its case for lifting a stay won through a court challenge by the state of Washington.

That means that for the time being, current tech company employees won’t be barred from re-entering the country, even if they come from one of the seven nations targeted by the Trump order. New hires, international students, and others who qualify for visas should be able to get in.

But the case is far from over, so companies and tech workers still face uncertainty about the final outcome. The temporary stay maintains the status quo while the courts mull the underlying question: Is Trump’s proposed policy lawful? The issue will likely be decided by the U.S. Supreme Court, on a timeline that may be rapid or slow. So company decisions about hiring, and workers’ decisions about accepting U.S. jobs, may be made while the consequences are still unknown. Foreign students are currently deciding whether to study at universities here, and risk being separated from their families for years. So the stakes are high.

Although the appeals court ruling represents a temporary reprieve, it doesn’t serve as a forecast of the eventual stance of the U.S. Supreme Court.

But the ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals reaffirms an interim court victory by Washington State Attorney General Bob Ferguson, who brought a constitutional challenge against President Trump’s controversial executive order issued Jan. 27.

At Washington state’s request, U.S. District Judge James L. Robart issued a nationwide temporary restraining order Feb. 3, suspending enforcement of Trump’s order. That executive order had put a hold of at least 90 days on entry into the United States by people from seven predominantly Muslim nations: Syria, Libya, Iran, Iraq, Somalia, Yemen, and Sudan. The administration said the purpose was to reduce the risk that potential terrorists would be admitted.

Today, the appeals court in San Francisco said the Trump administration failed to show in oral arguments this week that keeping the district court’s emergency stay in place while the Trump order’s legality was fully litigated would cause irreparable injury to U.S security interests.

“Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years,’’ the appeals court said.

“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.”

The “per curiam” (or “by the court”) decision by the three judges—two appointed by Democratic presidents and one by a Republican—was apparently unanimous. No dissents were filed.

“No one is above the law, not even the President,” Ferguson said in a written statement about the ruling. “The President should withdraw this flawed, rushed and dangerous Executive Order, which caused chaos across the country. If he refuses, I will continue our work to hold him accountable to the Constitution.”

The White House had not released a statement yet as this story went to press.

The case could now go back to Robart, the federal trial judge who issued the stay, for litigation on the underlying claims in the Washington state lawsuit. But the challenge by the states to Trump’s order is expected to end up before the U.S. Supreme Court for a final resolution. Even if the high court invalidates parts of the executive order, the surviving provisions could go into effect. The Trump order contemplates a longer-lasting ban on entry into the United States by people from the seven named nations, and leaves open the possibility that more countries will be added to the ban. It also suspends the U.S. refugee resettlement program.

In Washington state’s federal court suit, Ferguson claimed that the suddenly imposed travel ban in late January not only caused chaos and uncertainty that damaged Washington’s economy, but also violated the Constitutional principle of freedom of religion because it was allegedly designed to carry out Trump’s presidential campaign pledge to impose a sweeping Muslim ban.

The Washington court challenge sought relief on behalf of the state’s public universities, which stood to lose hundreds of millions of dollars in tuition from international students, as well as Washington companies such as Microsoft and Amazon, whose employees were either denied re-entry into the United States or could not risk leaving the country on business for fear of being unable to return. Tech companies supporting the suit said the travel ban would hinder their efforts to hire talented workers from abroad and decrease their ability to innovate and compete globally.

The Washington action has been joined by 18 other states, and the District of Columbia. The additional states are: Minnesota, Pennsylvania, Massachusetts, New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, and Virginia.

More than 125 companies, including Amazon, Expedia, Apple, Google, Airbnb, Uber and Facebook, have filed separate briefs in support of Washington state’s suit.

Bernadette Tansey is Xconomy's San Francisco Editor. You can reach her at btansey@xconomy.com. Follow @Tansey_Xconomy

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