WASHINGTON — A federal appeals court on Sunday denied the Justice Department’s request for an immediate reinstatement of President Donald Trump’s ban on accepting certain travelers and all refugees.
The Trump administration had appealed a temporary order restraining the ban nationwide, saying a federal judge in Seattle overreached by “second-guessing” the president on a matter of national security.
The appeals court’s denial of an immediate stay means the legal fight over the ban will continue for days at least. The 9th U.S. Circuit Court of Appeals in San Francisco asked challengers of the ban to respond by early Monday, and for the Justice Department to file a counter-response by the evening.
Acting Solicitor General Noel Francisco, representing the administration, 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.
“The power to expel or exclude aliens is a fundamental sovereign attribute, delegated by Congress to the executive branch of government and largely immune from judicial control,” according to government’s filing.
The government has suspended the ban’s enforcement in compliance with order of the order of U.S. District Judge James Robart. His ruling was an extraordinary setback for the new president, who only a week ago acted to suspend America’s refugee program and halt immigration from seven Muslim-majority countries that the government said raise terrorism concerns.
Trump mocked Robart, who was appointed by President George W. Bush, calling him a “so-called judge” whose “ridiculous” ruling “will be overturned.”
“Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision,” he tweeted.
Trump’s direct attack recalled his diatribes during the campaign against the federal judge of Mexican heritage who oversaw lawsuits alleging fraud by Trump University, and may prompt some tough questions as these challenges rise through the courts.
But the government’s brief repeatedly asserted that presidential authority cannot be questioned by judges once the nation’s security is invoked.
Congress “vests complete discretion in the President” to impose conditions on alien entry, so Trump isn’t legally required to justify such decisions, it said. His executive order said the ban was necessary for “protecting against terrorism,” and that “is sufficient to end the matter.”
The Justice Department asked that Robart’s order be put on hold pending resolution of the appeal, so that the ban can “ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”
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. Demonstrations took place outside the White House, in New York and near his estate in Palm Beach, Florida, where Trump attended an American Red Cross fundraising gala.
“We’ll win,” Trump told reporters Saturday night. “For the safety of the country, we’ll win.”
The State Department said on Friday that as many as 60,000 foreigners from Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen 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 will now be allowed in. A State Department official said in an email obtained by The Associated Press that the government was “focusing on booking refugee travel” through Feb. 17 and working to have arrivals resume as soon as Monday.
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.
Hearings have also been held in court challenges nationwide. Washington state and Minnesota argued that the temporary ban and the global suspension of the U.S. refugee program harmed residents and effectively mandated discrimination.
In his written order Friday, Robart said it’s not the court’s job to “create policy or judge the wisdom of any particular policy promoted by the other two branches,” but rather, to make sure that an action taken by the government “comports with our country’s laws.”
Robart’s order also imposes harm on U.S. citizens “by thwarting the legal effect of the public’s chosen representative,” it says.
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