Appeal follows U.S. moves to comply with court order
Appeal court sets deadlines for side to make legal arguments
A U.S. Court of Appeals denied a request to reinstate President Donald Trump’s immigration restrictions while judges consider an emergency appeal of the order that let visa holders and refugees from seven predominantly Muslim nations resume travel to the U.S.
The emergency appeal, filed by the Justice Department late Saturday, asserts Trump’s constitutional authority to order a temporary ban on immigration and says the judge’s Friday ruling “second-guesses the president’s national security judgment.” The department’s request to reinstate the ban, part of the appeal, was rejected by the court, which set Sunday and Monday for the two sides to submit legal arguments.
The court action followed moves by the Department of Homeland Security to comply with Friday night’s court ruling by reverting to immigration procedures in place before the Jan. 27 executive order on immigration, and by the State Department to reverse the provisional revocation of about 60,000 visas.
“We’ll win. For the safety of the country, we’ll win,” Trump told reporters as he entered a gala for the Red Cross in Florida on Saturday.
Trump responded to Friday’s’ legal setback in a series of messages on Twitter over several hours on Saturday.
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” the president told his 23.6 million followers after U.S. District Judge James Robart in Seattle lifted the ban on all refugees and on visa holders from the seven countries. He later wondered “what is our country coming to when a judge can halt a Homeland Security travel ban.”
Robart said the states of Washington and Minnesota, which brought the case, can sue on the grounds that their economies and residents would be harmed by the ban.
The ruling was the most comprehensive legal admonishment of Trump’s executive order prohibiting immigrants, students, temporary workers and others from Syria, Iraq, Iran, Sudan, Somalia, Yemen and Libya from entering the U.S. for 90 days. Judges in Brooklyn, New York, Los Angeles and Alexandria, Virginia, have issued orders that are less sweeping. The Seattle judge also temporarily set aside Trump’s 120-day ban on refugees from those countries.
Robart’s ruling eclipsed a Trump administration win earlier on Friday, when a federal judge in Boston refused to extend a temporary ruling blocking enforcement at that city’s airport of the ban on immigrants from seven countries. “Why aren’t the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?” Trump said on Twitter.
“The president’s order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people,” the White House said in a statement early Saturday. After initially calling the judge’s decision “outrageous,” the White House issued a revised statement removing the word.
Trump’s “so-called judge” comment drew a sharp response from Chuck Schumer, the Senate’s top Democrat, who said in a statement that Trump “shows a disdain for an independent judiciary that doesn’t always bend to his wishes and a continued lack of respect for the Constitution.”
The decision by Robart, a 2004 appointee of Republican President George W. Bush whose nomination was approved in a 99-0 Senate vote, carries unique significance because the states were able to link Trump’s edict to its adverse economic impact, said Geoffrey Hoffman, Director, University of Houston Law Center Immigration Clinic. The order’s effect on jobs and economic stability is likely to make the temporary ruling difficult for the president to overturn before the judge considers a permanent injunction, he said.
“The Washington suit is so much more broad than anything else we’ve seen because it goes into the economic interests of the parties — that’s a very big development,” Hoffman said of a likely appeal by the federal government. “Appeals of temporary orders occur only in very, very extraordinary measures. I doubt it would be successful.”
Washington Attorney General Bob Ferguson said the effects on his state included economic consequences for employers based there, including Microsoft Corp., Starbucks Corp. and Amazon.com Inc. Bellevue, Washington-based Expedia Inc. had about 1,000 customers with flight reservations in or out of the U.S. from the seven countries, he said.
Minnesota, like Washington, cited the effect of the ban on students at its colleges and universities, as well as health care centers including the Mayo Clinic. The state’s 5.4 million residents included 30,000 immigrants from the affected countries, it said in the lawsuit. Minnesota has the largest population of Somalis in the U.S.
The Justice Department filed its appeal with the 9th Circuit Court, arguing that the actions taken through the president’s executive order were authorized by an act of Congress and also were taken pursuant to the president’s exclusive power as commander in chief and over foreign policy, according to an e-mailed statement.
Unless the appeals court blocks the lower court order, it will remain in place while the judge considers a request to permanently invalidate the president’s order. Ferguson said that hearing will probably occur within a month.
“It is not the loudest voice that prevails on the Constitution,” Ferguson said outside the courthouse. “We are a nation of laws; not even the president can violate the Constitution.”
U.S. Justice Department lawyer Michelle Bennett, arguing at Friday’s hearing, said the president was acting within the authority granted him by Congress and there was no financial harm to the states.
Trump’s policy, signed without advance notice, threw airports across America into turmoil last weekend as travelers from the affected countries who were already en route to the U.S. learned upon landing that they couldn’t leave the airport. Some of those people were lawful U.S. residents holding green cards and work visas. Some travelers were required to return to their points of origin, generating spontaneous protests at international terminals. Others were detained.
“The policy was not prompted by emergency measures — it’s not like there’s just been a terrorist attack on the order of 9-11,” said Anil Kalhan, associate law professor at Drexel University in Philadelphia, who specializes in immigrant law. “It was something implemented for political gain without any predicate. It’s unlikely the appeals court would intervene at this stage.”
David Miliband, president and chief executive officer of the International Rescue Committee, said Robart’s ruling demonstrated that Trump’s executive order wasn’t adequately thought out.
“There is every right for the administration to review and build on existing arrangements,” Miliband said in an e-mailed statement from the refugee assistance group. “There is no excuse for tearing up carefully developed procedures that have kept America safe.”
The case is State of Washington v. Trump, 17-cv-00141, U.S. District Court, Western District of Washington (Seattle). The Boston case is Loughghalam v. Trump, 17-cv-10154, U.S. District Court, Massachusetts (Boston). The appeal case is State of Washington v. Trump 17-35105, in the U.S. Court of Appeals for the Ninth Circuit.