A federal appeals court decided to keep in place the temporary restraining order halting President Trump’s immigration ban as other proceedings move through the lower courts.

“We hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay,” the 9th Circuit Court of Appeals ruled Thursday.

The appeals court ripped the Justice Department for arguing that Trump’s immigration action was not subject to judicial review. The court said, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

The unanimous decision by the three-judge panel of the 9th Circuit Court of Appeals to deny a stay of the restraining order does not serve as a ruling on the merits of the ban itself, but puts the Trump administration in a difficult spot.

Trump’s team could seek urgent intervention from the Supreme Court, but lifting the ban would require winning over five justices on the eight-justice court. If the high court divides evenly along ideological lines, the block of Trump’s ban would stay in place and the immigration ban likely would become a central theme in the battle over Judge Neil Gorsuch’s confirmation to the high court.

Should the Trump administration choose to wait for lower courts to proceed further before filing another appeal, the immigration ban could be halted for months. By the time any additional appeal from Trump’s team would make it to the Supreme Court, Gorsuch could already be seated on the high court.

In oral arguments Tuesday, lawyers for both sides faced pointed criticism from the West Coast appeals court. Trump’s Justice Department argued that an “irreparable injury” could result from the judges’ choosing not to lift the block, given the president’s assessment of the risk of terrorism included in the executive order.

When pressed by the court to identify a “real risk,” the Justice Department noted that the president determined there was a real risk, and noted that the court proceedings had moved quickly. The judges pushed back and noted that the government had gone to the appeals court before developing the record at the district court.

Noah Purcell, the attorney representing the state of Washington looking to prevent Trump’s ban, urged the judges to act as a check on the executive branch lest lifting the ban plunge the “country back into chaos.” Purcell also faced criticism from the judges for carping about the fast-paced court proceedings.

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“3-0” Clinton tweeted in response to unanimous decision.

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Trump weighed in on Twitter with an all-caps tweet shortly after the ruling was handed down.


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FULL ORDER: 9th Circuit Court of Appeals decision keeping Trump's immigration ban on hold

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