WASHINGTON — Rebuffed in its bid for a quick reversal, the White House said Sunday it expected the courts to reaffirm President Donald Trump’s executive power and reinstate a ban on refugees and travelers from seven predominantly Muslim countries from entering the United States.
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The case promised to extend into Monday at least, when fresh legal filings were due, and observers had no doubt the Supreme Court ultimately will have a say.
The San Francisco-based 9th U.S. Circuit Court of Appeals, in a brief order overnight, denied the administration’s request to set aside a Seattle judge’s ruling that put a temporary hold on the ban nationwide.
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The lawsuit by Washington state and Minnesota said Trump’s order harmed residents and effectively mandated discrimination. Their lawyers had until 2:59 a.m. EST Monday to submit briefs opposing the government’s request. The Justice Department then had a 6 p.m. EST deadline to respond.
"We’ll accomplish the stay and will win the case on the merits," Vice President Mike Pence said.
Members of Trump’s Republican Party scolded him for Twitter attacks on U.S. District Court Judge James Robart, appointed by President George W. Bush, and lawmakers accused Trump of stepping over the line that separates the executive from the judiciary. To Trump, Robart is a "so-called judge" whose "ridiculous" ruling "will be overturned."
"The president can criticize anybody he wants," Vice President Mike Pence said, adding that he believes the American people "find it very refreshing that they not only understand this president’s mind, but they understand how he feels about things."
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At issue is the legality of a presidential action undertaken in the name of national security. Whatever the outcome and however the case drags on, a president who was used to getting his way in private business is finding, weeks in to the jobs, obstacles to quickly fulfilling one of his chief campaign pledges.
"The president is not a dictator," said Sen. Dianne Feinstein, D-Calif. "He is the chief executive of our country. And there is a tension between the branches of government."
The government had told the appeals court that the president alone has the power to decide who can enter or stay in the United States, an assertion that appeared to invoke the wider battle to come over illegal immigration.
Congress "vests complete discretion" in the president to impose conditions on entry of foreigners to the United States, and that power is "largely immune from judicial control," according to the court filing.
"We don’t appoint judges to our district courts to conduct foreign policy or to make decisions about the national security," Pence said.
Feinstein, the top Democrat on the Senate Judiciary Committee, predicted the appeals court would not have the last word. "I have no doubt that it will go to the Supreme Court, and probably some judgments will be made whether this president has exceed his authority or not," she said.
In his ruling, Robart said it was not the court’s job to "create policy or judge the wisdom of any particular policy promoted by the other two branches," but to make sure that an action taken by the government "comports with our country’s laws."
Trump’s order applied to Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen — Muslim-majority countries that the administration said raise terrorism concerns. The order had caused unending confusion for many foreigners trying to reach the United States, prompted protests across the United States and led to multiple court challenges.
Trump’s criticism of Robart echoed campaign comments against a federal judge of Mexican heritage who was overseeing a lawsuit against Trump University. Justice Department lawyers could be called upon to answer for Trump’s words as the travel ban case makes it way through the courts.
"We all get disappointed from time to time at the outcome in courts on things that we care about," said Senate Majority Leader Mitch McConnell, R-Ky. "But I think it is best to avoid criticizing judges individually."
Sen. Ben Sasse, R-Neb., was blunter: "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."
The State Department said last week that as many as 60,000 foreigners from those seven countries had had their visas canceled. After Robart’s decision, the department reversed course and said they could travel to the U.S. if they had a valid visa.
The department also advised refugee aid agencies that refugees set to travel before Trump signed his order would now be allowed in.
The Homeland Security Department no longer was directing airlines to prevent visa-holders affected by Trump’s order from boarding U.S.-bound planes. The agency said it had "suspended any and all actions" related to putting in place Trump’s order.
Pence appeared on ABC’s "This Week," CBS’ "Face the Nation," NBC’s "Meet the Press" and "Fox News Sunday. McConnell was on CNN, Feinstein spoke on Fox and Sasse was interviewed by ABC.
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