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United States Courts Retain Reviewability of Executive Orders - Trump's Travel Ban Remains Suspended

In an unanimous decision by Justices of the United States Court of Appeals for the Ninth Circuit, in San Francisco, California, yesterday evening, Donald Trump's travel ban will remain suspended for now as the Court denied the new White House administration, a stay of the travel ban suspension issued by a Federal District Court Judge, in Washington State.

President Trump's executive order, among other things, sought to ban entry into the US from seven-mostly Muslim nations - Iraq, Syria, Yemen, Somalia, Iran, Libya and Sudan. The American Civil Liberties Union(ACLU) as well as a number of States including Washington and Minnesota - the Plaintiffs and Apellees of yesterday's action, sued the Donald Trump and the Federal government for relief from the ban.

After District Judge James L. Robart suspended the ban, Trump appealed the ruling to the Appellate Court. Justices William C. Canby, Richard R. Clifton and Michelle T. Friedland heard oral arguments on the case on February 7, before issuing an unanimous decision yesterday that allows for the suspension of the travel ban while the case works its way through the courts.

Most striking of the Justices' decision finding that the States have standing per damages as a result of the travel ban, was the explicit declaration by the Court of its reviewability of executive orders. This affirmation by the Court, hereby rebuked the Government's contention that the district court lacked authority to enjoin enforcement of the Executive Order because the President has "unreviewable authority to suspend the admission of any class of aliens."

Noting that the Government took "the position that the President's decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections." The Court added: "The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one."

But the Court ruled: "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy...Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the resolution of litigation challenging the constitutional authority of one of the three branches."

The Ninth Circuit Court affirmed that "...the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewability authority over immigration or are not subject to the Constitution when policymaking in that context."

The Court concluded: "...although courts owe considerable deference to the President's policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."