Six Legal Arguments That Could Tell the Future of Trump's Travel Ban

February 9th 2017

Kyle Jaeger

A federal appeals court on Thursday denied the government's request to lift a temporary restraining order against President Donald Trump's ban on travel from seven majority Muslim countries.

Though opponents of the executive order — which barred immigration from seven predominantly Muslim countries for 90 days and indefinitely blocked refugees from Syria — celebrated the ruling, it is not the last legal battle. A lawsuit filed by attorneys general in Washington and Minnesota, challenging the constitutionality of the order, will be heard at a later date.


The appeals court's decision on the temporary restraining order ultimately rested on the likelihood the government would eventually prove that the order is constitutional. In at least six instances, the ruling indicates that the government would not be able to make that argument.  

1. The government's claim that courts do not have access to classified information used to justify the executive order is without precedent.

The government attempted to justify its immigration action on the basis that it has classified information on potential threats that the court system cannot access. The three-panel court disagreed, noting that the government “may provide a court with classified information." The courts “regularly receive classified information under seal and maintain its confidentiality."

2. The executive order likely violated the constitutional right to due process for "lawful permanent residents and non-immigrant visa holders." 

Because the executive order barred reentry to the U.S. for green card holders and certain visa holders without providing "constitutionally sufficient notice and an opportunity to respond," the court determined that states suing the government "were likely to prevail on the merits of their due process claims."  

3. The government's "interpretation" of the executive order has problematically shifted.

Though the court did not cite specific examples of the Trump administration's "shifting interpretations" of its executive order, this may refer to the fact that initial provisions of the order — such as barring legal permanent residents, or green card holders, from the seven affected countries, as cited above — were subsequently reversed.

Essentially the appeals court found that even though the Trump administration had publicly argued legal permanent residents were no longer included in the ban, there was no telling if they would change their mind in the future. 

4. The government was not able to support its use of a list citing countries that pose potential threats to the U.S.

The Trump administration has repeatedly justified travel restrictions on seven specific countries by pointing to a 2015 law passed by former President Barack Obama, which increased visa requirements for individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen.

Beyond citing that list, the government “has not offered any evidence or even an explanation of how the national security concerns that justified those designations… can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.”

5. Past references to the executive order as a "Muslim ban" by Trump and his advisors could be used as grounds to argue that the immigration action was discriminatory.

Though the administration has distanced itself from Trump's past statements calling for a "Muslim ban," the fact that the president and his advisors have made such claims could be used in court to argue that the executive order violates the Establishment and Equal Protection Clauses of the Constitution by discriminating against a religious group.

6. The government failed to produce evidence that individuals from the seven affected country have committed terrorist attacks in the U.S.

Opponents and fact-checkers have noted the absence of any terrorist attacks committed in the U.S. by individuals from the seven affected countries since at least 1975. The court appeared to find that statistic significant in its ruling.

You can read the 9th Circuit Court of Appeals' full opinion here.