The Justice Department on Monday evening urged a federal appeals court to reinstate President Donald Trump’s targeted travel ban, saying that a judge’s order blocking it endangered national security and violated the separation of powers.
Opponents of the ban have said that it is a threat to the rule of law, to the nation’s security and to the economy.
With the filing of the administration’s brief, the challenge to the travel ban, the most ambitious and disruptive initiative of Trump’s young presidency, is ready for its most important judicial test yet, one that will yield the first appellate ruling.
A federal appellate court has scheduled telephone oral arguments for Tuesday afternoon in a lawsuit over President Trump’s travel and refugee ban. The San Francisco-based 9th U.S. Circuit Court of Appeals will hear from lawyers from the federal government and states suing Trump.
Many trial judges around the country have blocked aspects of Trump’s executive order suspending travel from seven mostly Muslim countries and limiting the nation’s refugee program, but none of those cases have reached an appeals court. And none of the lower-court rulings were as broad as the one under review in the case, State of Washington v. Trump.
That ruling, from Judge James L. Robart, a federal judge in Seattle, blocked the key parts of Trump’s executive order. Robart’s ruling allowed immigrants and travelers who had been barred from entry to come to the United States, and it inspired a harsh attack from Trump, who accused the judge of endangering national security.
On Saturday, the administration asked the 9th Circuit for an immediate administrative stay of Robart’s ruling without hearing from the plaintiffs in the case, the states of Washington and Minnesota. The court declined, instead asking for more briefs.
The appeals court’s order Saturday night was issued by Judge William C. Canby Jr., who was appointed by President Jimmy Carter, and Judge Michelle T. Friedland, who was appointed by President Barack Obama. They are two of the three 9th Circuit judges designated to hear motions in February. The third, Judge Richard R. Clifton, was appointed by President George W. Bush.
Now that the requested briefs have been filed, a ruling from the appeals court should follow soon. It will almost certainly be appealed to the Supreme Court.
The two states’ appellate brief, filed early Monday, said that “President Trump unleashed chaos by signing the executive order.”
Other states have joined the fray. Hawaii, which had filed a separate lawsuit challenging Trump’s order, moved to intervene Sunday. The next day, 15 states and the District of Columbia filed a brief supporting Washington and Minnesota. Among them were New York, California, Massachusetts and Virginia.
“If this court were to grant a stay,” the supporting brief said, “it would resurrect the chaos experienced in our airports beginning on the weekend of January 28 and 29, and cause harm to the states – including to state institutions such as public universities, to the businesses that sustain our economies, and to our residents.”
In an earlier brief filed Saturday, the Trump administration argued that Robart’s order would cause irreparable harm to national security.
In response, lawyers for the two states said that was not plausible, as it would mean that the nation had long been suffering “some unspecified, ongoing irreparable harm.”
“That makes no sense,” the brief said. “As this court has held, preserving the status quo against sudden disruption is often in the interest of all parties.”
On Saturday, the Trump administration urged the 9th Circuit to reject arguments based on religious discrimination, even though Trump has said he meant to favor Christian refugees. Judicial consideration of the president’s motives, the administration’s brief said, would violate the separation of powers.
The states responded that “courts have both the right and the duty to examine defendants’ true motives.”
They added that the administration had taken “a dizzying number of positions” on whether the executive order applied to permanent residents holding green cards. The order itself appears to cover such people, but the administration has said it will not enforce that part of the order.
Questions about permanent residents are not moot, the states’ brief said, as the administration could again change positions.
Several former diplomatic and national security officials filed a declaration making a second kind of argument.
“We view the order as one that ultimately undermines the national security of the United States, rather than making us safer,” the declaration said. “In our professional opinion, this order cannot be justified on national security or foreign policy grounds.”
The officials filing the declaration included John Kerry, a secretary of state under Obama; Madeleine Albright, who held the same position under President Bill Clinton; Susan E. Rice, Obama’s national security adviser; and Leon E. Panetta, who served as secretary of defense and head of the CIA.
Trump’s order, the officials said, would endanger U.S. troops and intelligence sources, disrupt counterterrorism and law enforcement efforts, damage the economy and have “a devastating humanitarian impact.”
“And apart from all of these concerns,” the officials said, “the order offends our nation’s laws and values.”
The third front in the legal battle against Trump’s order in the appeals court was opened by the technology industry and other businesses.
Almost 100 companies, including Apple, Facebook and Google, urged the 9th Circuit to continue to block Trump’s order, saying that the order “harms the competitiveness of U.S. companies.”
The “instability and uncertainty” created by the order, the brief said, “will make it far more difficult and expensive for U.S. companies to hire some of the world’s best talent – and impede them from competing in the global marketplace.”
“Immigrants or their children founded more than 200 of the companies on the Fortune 500 list, including Apple, Kraft, Ford, General Electric, AT&T, Google, McDonald’s, Boeing, and Disney,” the brief said. “Collectively, these companies generate annual revenue of $4.2 trillion, and employ millions of Americans.”
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