Andrew Napolitano: Appeals court did 'precisely the wrong thing'

Fox News senior judicial analyst Andrew Napolitano on Thursday night slammed an appeals court ruling rejecting the Trump administration's request to resume its temporary travel ban, calling the decision "precisely the wrong thing for the court to do."

"The decision to ban is not reviewable," the former New Jersey Supreme Court judge said in an interview on Fox's "Special Report" immediately following the decision's announcement.

"This is an intellectually dishonest piece of work that the 9th Circuit has produced tonight, because it essentially consists of substituting the judgment of three judges for the President of the United States, when the Constitution unambiguously gives this area of jurisdiction — foreign policy — exclusively to the president," he continued.


"That's why this is so profoundly wrong."

A San Francisco-based appeals court rejected the administration’s request to resume the temporary travel ban by a 3-0 vote.

The panel hearing the case included Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, a Barack ObamaBarack Hussein ObamaThe Memo: Biden, bruised by Afghanistan, faces a critical test in Ukraine Is the US capable of thinking strategically? Juan Williams: GOP infighting is a gift for Democrats MORE appointee.

"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 court said.

President Trump vowed to take the case to a higher court immediately after the decision was handed down, citing national security implications.

An appeal directly to the Supreme Court may not happen for some time as Neil Gorsuch, Trump's nominee to fill the vacant ninth seat, is just starting what will likely be a lengthy confirmation process.

Five votes are needed to overturn the lower court's decision.