The New York Times just reported that the Ninth Circuit has affirmed the district courts’s ruling, refusing to resinstate President Trump’s immigration ban. An appeal to the Supreme Court is likely. The court is still shorthanded since the Republicans refused to hold a hearing on Merrick Garland’s nomination, so a 4-4 split would leave the ban in place. There is a reason the Supreme Court has an odd number of members.
A full copy of the decision can be found here: https://www.nilc.org/wp-content/uploads/2017/02/2-9-17-9th-Circuit-Order.pdf
The court states at one point:
” … the Government has taken 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 Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
Later, it states:
“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. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.”
It only took the President of the United States a few minutes to tweet in response, in all caps this time, “SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE,” despite the fact that he is already in court.