The notoriously left-wing 9th Circuit Court of Appeals in San Francisco upheld the lower court ruling in rejecting President Trump’s appeal of the block on his refugee ban.
The decision sets up an almost certain collision court at the Supreme Court. And now the result could come down to whether the Senate confirms Judge Gorsuch in time to vote.
Here’s more from Breitbart:
San Francisco’s federal appeals court asserted a novel theory on Thursday to claim jurisdiction over the legal challenge to Executive Order 13769, affirming the lower court’s order halting President Trump’s temporary travel-restriction policy.
Federal appeals courts lack jurisdiction to review a district court’s temporary restraining order (TRO), which is a stop-gap measure that lasts for 14 days or less (unless extended) in extreme circumstances when a court does not even have the time to hold expedited hearings on the legal merits of a lawsuit. Judge James Robart from the Western District of Washington issued a TRO to block President Trump’s executive order.
The U.S. Court of Appeals for the Ninth Circuit claimed jurisdiction anyway, reasoning that although the district court explicitly held that its TRO was not a preliminary injunction (which, unlike a TRO, can be reviewed by an appeals court):
In light of the unusual circumstances of this case, in which the Government has argued that emergency relief is necessary to support its efforts to prevent terrorism, we believe that this period is long enough that the TRO should be considered to have the qualities of a reviewable preliminary injunction.
The Ninth Circuit went on to reject several of the tenuous theories the states of Washington and Minnesota asserted to claim standing to bring this lawsuit. Nonetheless, a three-judge panel of the court adopted one of the novel theories asserted by the state, holding that, “as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.” Some of those students are effected by the immigration order.
President Trump’s Department of Justice (DOJ) argued that Congress has plenary authority over all immigration decisions, and that Congress had delegated complete discretion to the president in 8 U.S.C. § 1182(f) to make such decisions, especially when national security was at stake.
