Trump Administration to Argue U.S. Faces Peril Without Banby and
Appellate judges will hear case Tuesday in San Francisco
Washington, others argue Trump immigration order hurts economy
The Trump administration will return to court Tuesday to argue it has broad authority over national security and to demand reinstatement of a travel ban on seven Muslim-majority countries that stranded refugees, triggered protests and handed the young government its first crucial test.
Justice Department lawyers are to appear before an appellate panel in San Francisco to seek the reversal of a lower-court ruling that put President Donald Trump’s Jan. 27 executive order on hold.
The lawyers contend that the ruling last week by U.S. District Judge James Robart of Seattle threatened national security and violated the constitutional separation of powers. Since Robart’s decision, refugees and travelers have been rushing to the U.S. before another legal twist closes the door again.
The temporary ban, instituted with little consultation with agencies charged with enforcing it, has come to define an administration that wants to remake the nation’s relationship with the world. Trump and his advisers see Islamist terrorism as a threat that can be best defused by halting the flow of immigrants who could be secretly planning attacks. Federal lawyers said in their Monday filing that delaying the ban poses “potential national-security risks and harms” that “cannot be undone.”
The days since Trump acted have been chaotic: Lawsuits were filed across the country as companies, universities, citizens and refugees sought relief.
The question before the San Francisco three-judge appellate panel springs from a case brought by Washington and Minnesota, which argued that the ban was unconstitutional and that their economies were being harmed. The panel will hear arguments from the states and the Justice Department in a telephone hearing at 3 p.m. California time Tuesday that will be streamed live on the internet. The loser is likely to appeal to the U.S. Supreme Court.
President Trump said he hoped the case wouldn’t require Supreme Court review. But he indicated his administration is determined to press forward. “We’re going to take this through the system,” he said, during a meeting Tuesday with county sheriffs at the White House. “We have to have security in our country.”
No matter whether the ban is reimposed while the case is pending, the dispute will go back to Seattle, where Robart will weigh whether to reject Trump’s policy on a longer-term basis.
The dispute is the prelude to broader battles that also may reach the Supreme Court. Opponents of the ban argue that it violates due process and equal-protection rights, in addition to the First Amendment’s prohibition of favor for any single religion.
The administration said in its Monday filing that Congress granted the president “broad discretion to suspend the entry of any class of alien.” The executive order is “neutral with respect to religion,” it said.
The Justice Department lawyers also argued that Robart exceeded his authority by extending his order throughout the U.S. “The court’s sweeping nationwide injunction is vastly overbroad,” they wrote.
At most, the injunction should only cover people previously admitted to the U.S., such as those with student visas or green cards who were temporarily abroad, the Justice Department contends. The president should be allowed to restrict the entry of people who have never been admitted to the U.S., it says.
Since the ruling, the president, a 70-year-old Republican, has sent Twitter messages excoriating Robart as a “so-called judge” and questioning why courts should hold sway over questions of national security.
Sixteen state attorneys general have filed a friend-of-the-court brief urging a stay of Trump’s order, but they are also looking at broader constitutional challenges. “They’re contending the president is above the law, he is not subject to judicial review, that he has carte blanche when it comes to immigration,” New York Attorney General Eric Schneiderman told MSNBC Tuesday morning. “This is a fundamental test of our constitution.”
David Rivkin, a constitutional litigator who served presidents Ronald Reagan and George W. Bush, said the case’s import transcends Trump’s executive order.
“If Judge Robart’s decision is ultimately upheld -- and I emphatically believe it will not be -- it opens up the prospects that the judiciary will be able to second-guess core executive branch determinations in the foreign-policy space,” he said.
Critics, however, have said Trump poses a danger to the nation’s founding principles.
“A president who fails to appreciate limitations on his power is both a statutory problem and a constitutional problem,” said William Buzbee, a Georgetown University law professor. “The question is whether the current administration really understands the role of the judiciary or has proper respect for the role of the judiciary.”
Trump’s order would bar Syrian refugees from the U.S. indefinitely, and block for 120 days all others fleeing their homelands claiming persecution or fear of violence. No citizens of Syria, Iran, Iraq, Yemen, Somalia, Libya or Sudan could enter the U.S. for 90 days.
Other federal courts, including one in New York’s Brooklyn borough, have issued narrower rulings striking down only certain parts of Trump’s ban. A Boston federal judge upheld it, adding to confusion about whether the ban remained in place as tens of thousands awaited definitive word.
Washington and Minnesota argued that the ban hurt residents and businesses, and their case was bolstered by a brief filed by companies including Facebook Inc., Google Inc. and Microsoft Corp. and a declaration by former top government officials, including former secretaries of state John Kerry and Madeleine Albright, former CIA directors Michael Hayden and Leon Panetta and former United Nations Ambassador Susan Rice. Democratic attorneys general from 16 states said Monday they would file arguments in support.
In the suit, the states argued that the ban hurt companies like Amazon.com, Microsoft and Expedia by limiting their ability to conduct business and recruit, and harmed universities by stranding faculty and students overseas. Washington’s lawyers argue the travel ban is a “draconian restriction” that violates due process and discriminates against Muslims.
The former officials in their filing ripped the order as “ill-conceived, poorly implemented and ill-explained.”
“We view the order as one that ultimately undermines the national security of the United States, rather than making us safer,” they said, explaining that it provides a recruitment tool for terrorists, endangers U.S. troops and disrupts national-security partnerships needed to address threats. "Apart from all these concerns, the order offends our nation’s laws and values.”
But last week, Justice Department lawyer Michelle Bennett argued in court papers that Congress delegated broad authority to the president on immigration. She referred to a 1952 Supreme Court case that rejected President Harry Truman’s efforts to seize steel mills during the Korean War. It includes a concurring opinion explaining that the president has the most authority when he acts with congressional authorization, which Bennett argues Trump did.
The government’s lawyers said in a filing in the Seattle case that the president has wide authority to suspend entry to anyone who “would be detrimental to the interests of the United States.”
Some in Congress want to go further than the order and overhaul the U.S. immigration system. Senator Tom Cotton, of Arkansas, plans to introduce legislation Tuesday with other Republicans to halve the number of green cards issued each year to about 500,000 and focus on reuniting families and employment-based immigration.
“I think that’s a good first step for reforming our immigration system so it focuses more on the immediate family and on high-skilled individuals who can come and help our economy,” Cotton said on MSNBC Tuesday.