1) The appellate court ruled upon what had been briefed. The Government did not provide information about terrorist threats that required blocking admission of those who had already been authorized to be admitted to the country. The court cannot rule on 3rd party information which has not been introduced at the circuit court. Courts don’t work that way. If the State wants information to be considered by the appeals court, said information has to be introduced into the record at the circuit court level, which the State apparently did not do.
2) The court ruled primarily on the question of due process for revocation of existing visas, not on whether the President has power to refuse to issue visas or to block entry by specific individuals identified as threats to public safety. The court ruled that it is not going to repeal the stay for just parts of the executive order that are incontrovertibly within the President’s power because that basically would be the court re-writing the executive order. If the President wants to rewrite the executive order to be compliant with the Constitution and revoke the previous executive order, he needs to do so, the court is not going to do so.
In short, this was a narrow ruling on whether a stay or preliminary injunction should stay in place. There may be other arguments to make, but the appeals court can only consider the evidence and arguments that have been entered into the record, it is not tasked with independently seeking out information or considering novel arguments that were not introduced by the State and indeed that would be judicial misconduct. It appears that the DoJ lawyer is unfamiliar with such basic rules of legal practice. Frankly, from listening to the actual broadcast, this DoJ lawyer appeared to be completely flummoxed on many occasions. He appeared unprepared and with no response other than hemming and hawing when judges asked him “where is that briefed?” i.e. where is that evidence entered into the record? They seem unimpressed when he says “but we just started making our case, we haven’t done that yet!”, pointing out that he is the one who chose to appeal at this specific time, and it is his job to enter the evidence, not theirs. Frankly, if that’s his usual level of competence, I wouldn’t hire him to write a will. He’d probably write a will with so many holes in it that my heirs would be squabbling over who gets what for the next twenty years after I die.
And oh yeah, the government lawyer’s argument “You can’t review the President’s executive order, you don’t have the power!”. Uhm, yeah. That’s like telling a cop “do you know who I am? You can’t arrest me!”. Yeah, you get some new steel jewelry shortly thereafter, and a few new scrapes and bruises if you object, then a nice trip to a holding cell to share space with pimps, drunks, druggies, and so forth. Sure, you’ll get let out as soon as you make bail the next day and the charges will likely be dismissed, but there’s some things you just don’t say as a common sense thing, and telling a judge “you can’t review me, you don’t have the power!” is one of them.
– Badtux the Snarky Penguin