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Appeals Court refuses to reinstate Trump's travel ban

By Adam Liptak

WASHINGTON – A federal appeals court on Thursday refused to reinstate President Donald Trump's targeted travel ban, delivering the latest and most stinging judicial rebuke to his effort to make good on a campaign promise and tighten the standards for entry into the United States.

The ruling was the first from an appeals court on the travel ban, and it was focused on the narrow question of whether it should be blocked while courts consider its lawfulness. The decision is likely to be quickly appealed to the U.S. Supreme Court.

That court remains short-handed and could deadlock. A 4-4 tie in the Supreme Court would leave the appeals court's ruling in place.

Trial judges around the country have blocked aspects of Trump's executive order, which suspended travel from seven predominantly Muslim countries and limited the nation's refugee program, but no other case has yet reached an appeals court.

The decision, from a three-judge panel of the 9th U.S. Circuit Court of Appeals, in San Francisco, reviewed a ruling issued last Friday by Judge James L. Robart, a federal judge in Seattle. Robart blocked the key parts of Trump's executive order, allowing immigrants and travelers who had been barred entry to come into the United States.

Robart's ruling inspired a harsh attack from Trump, who accused the judge of endangering national security. After the appeals court heard arguments Tuesday, Trump issued a pre-emptive critique on Twitter.

"If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled," he wrote. "Politics!"

The judges on the 9th Circuit panel were Judge Michelle T. Friedland, appointed by President Barack Obama; Judge William C. Canby Jr., appointed by President Jimmy Carter; and Judge Richard R. Clifton, appointed by President George W. Bush.

In written submissions and at Tuesday's argument, lawyers for the administration said the president's national security judgments should not be second-guessed by the courts. They added that both the Constitution and a federal law gave the president broad power to decide who may enter the United States.

Lawyers for the two states challenging the ban, Washington and Minnesota, along with their allies, told the appeals court that the ban was motivated by religious discrimination, endangered rather than enhanced the nation's safety and threatened the economy.

The Trump administration urged the 9th Circuit judges to reject arguments based on religious discrimination, even though Trump has said he meant to favor Christian refugees. Judicial consideration of the president's motives, lawyers for the administration said, would violate the separation of powers.

In its briefs and at the argument, the administration's position evolved. As the case progressed, the administration supplemented its request for categorical vindication with a backup plea for at least a partial victory.

At most, a Justice Department brief said, "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future" should be allowed to enter the country notwithstanding the ban.

The ban should continue to apply, the brief said, to people who have never visited the United States.

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