9th Circuit Court Declines to Quickly Reinstate Travel Ban (Video)

By Matt Zapotosky and Robert Barnes, The Washington Post

A federal appeals court on Sunday ruled that President Trump’s controversial immigration order will remain suspended for the time being, allowing those previously banned from coming to the United States at least another day to get here.

The decision by the U.S. Court of Appeals for the 9th Circuit preserves a lower judge’s order to temporarily halt the ban — and based on a schedule the court outlined, the stop will remain in place at least until sometime on Monday.

The Justice Department said it would not elevate the dispute to the Supreme Court before that.

(Feb 5, 2017 – Trump preparing for showdown over travel ban. Courtesy of CNN and YouTube)

Trump responded to the development Sunday by writing on Twitter that he had “instructed Homeland Security to check people coming into our country VERY CAREFULLY.”

A Department of Homeland Security spokeswoman did not immediately return messages seeking comment on how, practically, that screening would be implemented.

“Just cannot believe a judge would put our country in such peril,” Trump wrote. “If something happens blame him and court system. People pouring in. Bad!”

Trump twitterThe next few days will be telling for the future of the president’s executive order.

The appeals court asked those challenging the ban to file written arguments by 4 a.m. Eastern on Monday and asked Justice Department lawyers to reply by 6 p.m. Eastern.

They could then schedule a hearing or rule whether the ban should remain on hold.

In the meantime, people who had been stranded in legal limbo rushed to fly back to the United States. Some successfully reunited with family members, while others — particularly those whose visas were physically taken or marked as invalid — ran into roadblocks trying to board planes overseas.

At Dulles International Airport in Virginia on Sunday, immigration lawyers could be heard on phones, arguing with airline representatives to let their passengers board as some seemed confused over the various court rulings and what they meant.

What ultimately lies ahead likely is a weeks-long battle that will be waged in various courtrooms across the country over whether Trump’s ban can pass legal muster.

Federal courts in New York, California and elsewhere have blocked aspects of the ban from being implemented, though one federal judge in Massachusetts declared that he did not think challengers had demonstrated they had a high likelihood of success.

The lawsuits now stretch from D.C. to Hawaii, and the number seems to grow regularly.

The Trump administration has been steadfast in its support of the executive order, which it says is necessary for national security, and the president himself tweeted repeatedly his disdain for the judge in Washington state who put a stop to it.

“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Trump wrote Saturday.

Vice President Pence said Sunday on Meet The Press that White House officials felt Trump was “operating within his authority as president, both under the constitution, and under clear statutory law.”

(Feb 5, 2017 – Vice President Mike Pence joined Meet the Press to talk about the roll-out of the White House’s immigration and refugee ban. Courtesy of NBC News and YouTube)

Legal analysts have said the president does have broad authority to set immigration policy, though civil liberties advocates have countered that the order essentially amounts to a discriminatory ban on Muslims with no real national security purpose.

“We’re very confident that we’re going to prevail,” Pence said. “We’ll accomplish the stay and will win the case on the merits. But again, the focus here is on the safety and security of the American people.”

On Sunday morning television talk shows, some Republicans in Congress took issue with comments by the president, particularly his description of U.S. District Judge James L. Robart as a “so-called judge.”

“I’ll be honest, I don’t understand language like that,” Sen. Ben Sasse (R-Neb.) said. “We don’t have so-called judges, we don’t have so-called senators, we don’t have so-called presidents. We have people from three different branches of government who take an oath to uphold and defend the Constitution.  . . . So, we don’t have any so-called judges, we have real judges.”

Senate Majority Leader Mitch McConnell (R-Ky.) said: “We all get disappointed from time to time at the outcome in courts on things that we care about. But I think it is best to avoid criticizing judges individually.”

McConnell went on to offer a broader critique of Trump’s executive order than he had previously: “We all want to try to keep terrorists out of the United States.

But we can’t shut down travel. We certainly don’t want Muslim allies who have fought with us in countries overseas to not be able to travel to the United States. We need to be careful about this.”

(Feb 5, 2017 – President Donald Trump appeared confident about the appeal to have his administration’s travel ban restored, saying at a gala that “for the safety of our country, we’ll win.” Courtesy of NBC News, TODAY and YouTube)

Several federal judges have ruled against the administration on its implementation of the ban, though the case now before the San Francisco-based 9th Circuit is perhaps the most significant one.

It stems from a lawsuit brought by the states of Washington and Minnesota, which alleged that the immigration order was “separating families, harming thousands of the States’ residents, damaging the States’ economies, hurting State-based companies, and undermining both States’ sovereign interest in remaining a welcoming place for immigrants and refugees.”

Responding to those arguments, Robart temporarily halted the ban on Friday. Then, 9th Circuit Judges William C. Canby Jr., who was appointed by Jimmy Carter, and Michelle Taryn Friedland, who was appointed by Barack Obama, denied the Justice Department’s request on Sunday to immediately restore it.

The Justice Department could have gone straight to the Supreme Court, but a Justice Department spokesman said it would not do so.

“With the fast briefing schedule the appeals court laid out, we do not plan to ask the Supreme Court for an immediate stay but instead let the appeals process play out,” spokesman Peter Carr said.

Although the side that ultimately loses can request intervention from the nation’s highest judicial body, it would take the votes of five justices to overturn the panel decision. The court has been shorthanded since the death of Justice Antonin Scalia nearly a year ago, and it is ideologically divided between four more liberal justices and four conservative-leaning ones.

Leon Fresco, American University Washington College of Law, (Image Credit: Abaca Press, MCT)
Leon Fresco, American University Washington College of Law, (Image Credit: Abaca Press, MCT)

Leon Fresco, the deputy assistant attorney general for the Office of Immigration Litigation in Obama’s Justice Department, said he was “surprised that there is this exuberance to immediately rescind the executive order,” particularly given the timing issues.

Trump’s order, which barred refugees and citizens of seven Muslim-majority countries from traveling to the United States, was temporary. Refugees were banned for 120 days.

The others were barred for 90 days, except those from Syria, whose travel to the United States was blocked indefinitely. The order was purportedly designed to give the administration time to formulate a plan on how to vet people coming from countries that have terrorist activity.

“It is perplexing why the government wouldn’t want to simply, at this point, maintain an orderly process in one court as opposed to fighting it out all across the country in different courts, and working its way to the Supreme Court,” Fresco said.

“Unless the goal is to have an outright travel ban forever, and we should take the president at his word that that’s not the goal, then let’s just have calmer heads prevail and conduct the security analysis that was going to be conducted during these 90 days.”

Indeed, if Trump’s ban were to be immediately reinstated, that might spark chaos similar to that which occurred when it was first rolled out on Jan. 27. To implement the order then, the State Department provisionally revoked tens of thousands of visas.

When people first began landing at U.S. airports, Customs and Border Protection officers detained more than 100 people and deported some, sparking protests and lawsuits across the country.

It was unclear Sunday whether U.S. officials had a plan in place to avoid a repeat of that scenario, though much would depend on what specifically was ordered by a court, and when. Spokesmen for the State Department and Customs and Border Protection declined to comment on the question.

In an interview with Bill O’Reilly on Sunday afternoon, Trump insisted the initial implementation of his order was “very smooth” and said — misleadingly — that “you had 109 people out of hundreds of thousands of travelers, and all we did was vet those people very, very carefully.”

That does not take into account the tens of thousands of people who could not travel because their visas was revoked, nor does it acknowledge those who were taken out of the country after landing.


(Feb 5, 2017 – Prior to the kickoff of Super Bowl LI, Bill O’Reilly asked President Donald Trump about the rollout of the travel ban stipulated in his executive order. Courtesy of Fox News, USA News and YouTube)

The Department of Homeland Security said Saturday that because of Robart’s ruling, it was suspending enforcement of the executive order entirely, and the State Department restored the visas that had been provisionally revoked.

Advocates encouraged travelers from the affected countries who qualified for entry to get on planes as soon as possible because of the unpredictable legal terrain.

Very early Sunday morning, the Justice Department asked the appeals court to intervene, asserting that it was improper for a lower court to engage in “second-guessing” of the president’s judgment on a national security matter.

Noel Francisco (Image Credit: The National Law Journal)
Noel Francisco (Image Credit: The National Law Journal)

“The injunction contravenes the constitutional separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nation’s elected representative responsible for immigration matters and foreign affairs; and second-guesses the President’s national security judgment about the quantum of risk posed by the admission of certain classes of aliens and the best means of minimizing that risk,” acting solicitor general Noel Francisco wrote in a brief.

It is somewhat unusual for a district judge to issue an order that affects the entire country, but Robart, who was nominated by President George W. Bush and has been on the bench since 2004, said it was necessary to follow Congress’s intention that “the immigration laws of the United States should be enforced vigorously and uniformly.”

He was quoting from a 2015 appeals court ruling that had blocked Obama’s executive action that would have made it easier for undocumented immigrants in this country to remain. It was never implemented because of legal challenges.

Darryl Fears, Mike Debonis, Spencer S. Hsu, Aaron Blake, Fenit Nirappil and Mark Guarino contributed to this report.

Original post https://www.washingtonpost.com/politics/trump-administration-appeals-to-restore-travel-ban-says-earlier-ruling-was-second-guessing-the-president/2017/02/05/6fcdbb5a-eb4c-11e6-80c2-30e57e57e05d_story.html?utm_term=.33a148a8cd20