KELLY OCONNELL SHOW: Trump Loses Ban Appeal

HOLDING PRESERVING BAN EXCERPTS:

"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," the judges wrote.

"In short, although courts owe considerable deference to the President's policy determinations with respect to immigration and national security, there is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages,” the decision stated.

Judges pointed to valid arguments on each side of the passionate debate.

They said there is a “powerful interest” in protecting national security and preserving the the president’s authority “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,” the ruling stated.

“The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel,” the opinion said.

The government had argued that due process rights were not violated because the White House counsel, several days after the ban was implemented, issued guidance stating that the order did not apply to green card holders — and that other individuals were not citizens and therefore had no due process rights.  

The protections provided by the Fifth Amendment are not limited to citizens, the court insisted. “We cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings,” they wrote.