Donald Trump’s travel ban faces its biggest legal test yet
THE judges considering US President Donald Trump’s travel ban have grilled lawyers on both sides of the debate during a hearing today.
THE judges considering US President Donald Trump’s travel ban have grilled lawyers on both sides of the debate during a hearing today.
Three judges from the 9th US Circuit Court of Appeals considered whether to restore Mr Trump’s executive order ahead of a decision being made on its legality.
Each side had half an hour to defend their positions, with the judges asking tough questions throughout.
During the hearing the judges expressed scepticism over the need for the travel ban that covers seven predominantly Muslim countries, but also downplayed the importance of public comments that suggested the ban targeted Muslims.
Circuit Judge Michelle T Friedland, who was appointed by President Barack Obama, asked whether the government had connected any immigrants from the seven banned nations to terrorism.
Justice Department lawyer August Flentje, special counsel to the assistant attorney general, who made arguments on behalf of the government, said the government was aware of some foreign nationals who had been arrested in the US since September 11 but didn’t give details of the evidence.
When pressed Flentje said a number of Somalis in the US had been connected to the al-Shabab terrorist group but said this was not on the public record. Other examples were also not on the public record.
He said the case was moving fast and the government had not yet included evidence to support the president’s ban.
Flentje also argued the president had the right to assess the risk to national security and the banned countries were based on a list determined as risky by Congress and his predecessor in the last two years.
He said the extraordinary action of halting the President’s order was an “unwise course”.
The lawyer representing the state of Washington, Noah Purcell, also complained of time pressures and the lack of discovery when he was asked if he had any proof that Mr Trump’s ban targeted Muslims.
Judge Richard R Clifton said the states hadn’t presented evidence that the ban discriminated against Muslims as alleged by several states suing over the executive order.
He said that pointing to media reports of comments made by government figures was not proof.
“I don’t think allegations cut it at the moment,” he said.
However, it was noted later that while public statements couldn’t be given much weight, they were potential evidence.
Trump aide Rudy Giuliani has previously told Fox News Saturday the president originally dubbed his executive order a “Muslim ban,” and asked the former New York mayor to show him “the right way to do it legally.”
In a Facebook post, Mr Trump denied the order was a Muslim ban and said it was about “terror and keeping our country safe”.
Judge Clifton said it was hard to deny the terror concerns from the seven Muslim-majority countries covered by the ban, and it was hard to claim the ban amounted to hostility against Islam when the vast majority of Muslims in the world would not be affected.
Purcell said the order didn’t have to affect every Muslim for it to be unconstitutional, if it was improperly based on religious discrimination.
He said halting the executive order had also not harmed the US government, but had harmed state residents.
Purcell said the ban had split up families, held up students trying to travel to the US to study and had prevented people from visiting family abroad.
Purcell said the ban affected thousands of Washington state residents, but Judge Clifton said he suspected this was a “small fraction” of the state’s residents.
There was also heated debate about whether the states were allowed to sue, instead of the individuals directly impacted.
The states say they are suing on behalf of their residents and universities, which have said they had students and faculty stranded overseas by the travel ban.
A court spokesman earlier said it was unlikely that the court would issue a ruling Tuesday but Judge Friedland said they would endeavour to deliver a decision as soon as possible.
WHAT’S GOING ON?
Mr Trump’s executive order on immigration has legal experts grappling with a key question: how broad is the US president’s reach when it comes to shaping migration policy?
Trump’s decree slapped a blanket ban on entry for nationals of seven predominantly Muslim countries for 90 days and barred all refugees for 120 days. Refugees from Syria were blocked indefinitely.
A federal judge temporarily blocked Trump’s executive order last week, allowing travellers from seven predominantly Muslim nations covered by the ban to again enter the country.
The state of Washington, Minnesota and others say the appeals court should allow the temporary restraining order to stand as their lawsuit moves through the legal system.
The government is asking the court to restore Trump’s executive order, saying the president alone has the power to decide who can enter or stay in the United States.
The ultimate ruling in the case could clear confusion regarding Trump’s executive reach, and leave a lasting legal impact.
There is a chance the case will go all the way to the Supreme Court, the nation’s top bench that is the final interpreter of US constitutional law.
For now, all eyes are on the Ninth Circuit Court of Appeals, based in San Francisco, as it weighs the order temporarily halting the ban nationwide, issued by Seattle federal judge James Robart.
A hearing before three judges — two of whom were appointed by Democratic presidents, and one by a Republican — was set for Tuesday at 3pm Pacific time (Wednesday, 10am AEDT).
As a federal judge, Robart’s ruling has nationwide validity. While several other federal judges had previously issued rulings on narrow aspects of Trump’s executive order, his was the first to address it as a whole.
WHO IS INVOLVED?
The Trump administration has challenged Robart’s ruling by filing an emergency motion with the Ninth Circuit Court of Appeals saying that suspending the ban was causing “irreparable harm” to the American public.
The primary plaintiffs are two Democratic-leaning states that border Canada: Washington, where Robart sits, and Minnesota. They were backed in a court brief filed by 16 state attorneys general.
A number of groups have filed briefs backing the states’ efforts, including the American Civil Liberties Union, the Southern Poverty Law Center — which monitors extremism in the US — and the HIAS refugee protection organisation.
Nearly 300 law professors and some 130 Silicon Valley firms have also submitted arguments supporting Robart’s opinion.
Trump has attacked Robart in a string of fiery tweets.
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” the president wrote.
WHAT ARE THEIR ARGUMENTS?
Trump justifies his decree by invoking Article II of the Constitution, which grants the president authority to direct immigration policy and conduct foreign affairs.
The US government has defended the president’s travel ban as a “lawful exercise” of his authority, and claims the federal court erred in barring enforcement of the measure.
Trump’s argument is also founded in part on a 65-year-old provision of the federal Immigration and Nationality Act, which allows the president to suspend US entry of any category of foreigners whose presence he deems “detrimental to the interests of the United States.” Government lawyers are trying to bolster this argument by saying that the judiciary is unqualified to decide on national security matters.
“Unlike the president, courts do not have access to classified information about the threat posed by terrorist organisations operating in particular nations, the efforts of those organisations to infiltrate the United States, or gaps in the vetting process,” they wrote in their appeal.
Those opposed to the White House decree also cite the Constitution, saying that the executive order violates its fundamental principles including those on equality, freedom of movement and freedom of religion.
They also emphasise that the role of the judicial branch is to check the power of the executive, especially to protect minorities.
The states pin the legitimacy of their complaint on the fact that Trump’s ban affects them through its negative consequences on employment, business and education.
They also warn that reinstating the ban could threaten public order, considering the chaos that broke out, especially in airports, following its hurried implementation.
WHAT HAPPENS NEXT?
The appeals court can opt to reinstate the ban, confirm its suspension, or schedule an additional hearing.
If the ban is restored, authorities have yet to indicate whether they have taken steps to avoid a repeat of the airport detentions and deportations which fuelled international outrage and mass protests the first time around.
If the court takes the second option, Robart’s decision would remain in place nationwide, keeping the US open to refugees and travellers from the seven targeted countries.
The losing party would be able to request the Supreme Court to take on the case.
If the nation’s highest court accepts, five of the eight total judges would be required to reverse the decision from the Court of Appeals.
Achieving that majority poses a challenge: the Supreme Court is currently ideologically split between four conservatives and four progressives.
Trump has nominated a conservative, Neil Gorsuch, to fill the vacant ninth seat. But he must first get confirmed by the Senate.
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