Daniel Bress testifies before the Senate Judiciary Committee during his confirmation hearing to be U.S. circuit judge for the Ninth Circuit Court of Appeals on May 22, 2019. Photo by Diego Raszinschi

A divided panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration's attempt to stay an injunction that halts enforcement of a presidential proclamation restricting certain immigrants from entering the U.S. without an approved health insurance plan.

In Monday's decision, however, recent Trump Ninth Circuit appointee Judge Daniel Bress dissented, saying that the court gave deference "to everyone but the President."

The government sought a motion to stay a preliminary injunction blocking the October proclamation, which the administration has said aims to reduce the costs of providing health care to uninsured individuals. In a majority opinion written by Chief Judge Sidney Thomas, and joined by Judge Marsha Berzon, the court found that the government did not establish the necessary irreparable harm to justify their motion to stay the injunction, which was issued by a trial judge in the U.S. District Court for the District of Oregon in November.

"Even if we credit the Proclamation's assertions, the government has not demonstrated that the healthcare system will be irreparably burdened while this appeal is pending," Thomas wrote. "The record evidence shows that many of the immigrants affected by the Proclamation could obtain some form of insurance that would reduce their already minimal contribution to healthcare costs, but these immigrants are nonetheless inadmissible under the Proclamation because they cannot obtain an 'approved' health insurance plan or cannot obtain a plan within the 30-day deadline."

Naomi Igra, of Sidley Austin in San Francisco, argued the case for the appellees and did not respond to a request for comment Monday afternoon. Plaintiffs were also represented by attorneys from The Justice Action Center in Los Angeles and the Innovation Law Lab in Portland, Oregon.

In his dissent, Bress said the decision is "yet the latest example of our court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy."

"There is no legal basis to impose novel and unjustified restrictions on what the Supreme Court has described as 'the President['s] sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long," wrote Bress, citing Trump v. Hawaii, a 2017 Supreme Court decision that found President Donald Trump lawfully used his authority to suspend entry of migrants into the U.S.

"Yet the majority opinion gives deference to everyone but the President—the district court, whose analysis was deeply flawed; States who joined an amicus brief and who are not even parties to this case; and plaintiffs' expert, Dr. Leighton Ku, who candidly admits he performed 'not an ideal analysis,'" Bress wrote.

Bress said that policy debates should be resolved in Congress, the public square or the ballot box, not a district court or panel of judges in San Francisco.

"It is a bad day for the separation of powers when the Executive—operating at the apex of his constitutional mandate—loses out to players who lack the authority that the Constitution and Congress entrusted to him," he said.