The opinion does not grapple with some of the thorniest legal questions raised by Trump's travel ban orders: whether they're unconstitutional because they stem from his calls for a Muslim ban during the presidential campaign a year ago or similar sentiments he has hinted at while in office.
LOS ANGELES A federal judge in Los Angeles today issued the fourth nationwide preliminary injunction halting President Donald Trump's attempt to ban transgender individuals from openly serving in the military while it is challenged in the courts.
The ruling by the San Francisco-based USA 9th Circuit Court of Appeals can not immediately take effect, however, because of a Supreme Court stay until the Trump administration's challenge against two injunctions plays out in court.
The language of the order was adopted from a Supreme Court order pertaining to an earlier version of the ban.
"The Executive", the panel remarked, "cannot without assent of Congress supplant its statutory scheme [for immigration] with one stroke of a presidential pen".
But the ban will remain fully in effect for the time being, however, because on December 4 the U.S. Supreme Court ordered it to be fully implemented until all appeals in two challenges to Trump's order are resolved, including appeals to the Supreme Court itself.
As Denniston notes, the Ninth Circuit opinion is noteworthy for its strong rejection of Trump's claim to virtually unlimited and unreviewable presidential power to exclude aliens, regardless of any limitations imposed by Congress. Letting the president claim such boundless authority would be a unsafe breach of separation of powers whose implications go far beyond the travel ban.
On Thursday (local time) the Richmond, Virginia-based 4th US Circuit Court of Appeals said it was denying the administration's request while the appeal proceeds.
The case is Hawaii v. Trump, 17-17168, U.S. Court of Appeals for the Ninth Circuit, San Francisco.
The administration had urged the appeals court to suspend an order by a federal judge in Baltimore for the armed forces to begin accepting transgender recruits on that date.
Immigrant-rights advocates challenged the policy, arguing Mr. Trump didn't justify the ban, that it overstepped his powers and that it amounted to unconstitutional discrimination. In that post, I also explained why the inclusion of North Korea and some Venezuelan government officials does not obviate the anti-Muslim goal of the ban.
The court's action could prompt the administration to ask the conservative-majority U.S. Supreme Court to intervene.
In any event, we may well soon see what the justices really think.