A flurry of legal arguments as appeals court decides whether Trump’s immigration ban will be enforced
As a federal appeals court prepared to hear arguments Tuesday on whether to continue blocking enforcement of President Trump’s moratorium on admissions from seven countries in the Middle East and Africa, a broad coalition of states, business leaders and former cabinet members joined Monday in urging the judges to keep the ban on hold.
In a torrent of court filings over the last 48 hours, representatives of 15 states and the District of Columbia, law professors, civil rights groups and industry leaders implored a three-judge panel of the U.S. 9th Circuit Court of Appeals to continue blocking the ban until the constitutional issues can be resolved.
At the heart of the case are questions of whether the suspension of admissions from the seven predominantly Muslim countries amount to religious discrimination, and what limits exist to the president’s broad authority to protect the country from terrorism.
None of those issues will be resolved this week by the court, which is merely ruling on whether the controversial ban can continue to be applied while the legal issues are decided.
The case landed before the court’s motions panel — whose membership changes monthly — after Trump challenged a temporary restraining order issued Friday by a district judge in Washington state.
Trump’s Jan. 27 executive order suspends entry to immigrants from Syria, Iraq, Sudan, Iran, Yemen, Somalia and Libya, and also suspends resettlement of refugees in the U.S.
U.S. District Judge James L. Robart, an appointee of President George W. Bush, acted in response to a lawsuit filed by the states of Washington and Minnesota.
This month’s three-member motions panel, which is likely to decide the case within the next few days, consists of appointees of Presidents Carter, Bush and Obama.
The panel will hear an hour of telephone arguments at 3 p.m. Tuesday.
The case, State of Washington vs. Trump, is being closely watched because the 9th Circuit could have the final word on the travel ban, at least for a while.
If the Supreme Court decides not to review the 9th Circuit ruling or splits 4 to 4, the case would then go back before Robart in Seattle to decide the constitutional issues, probably on an accelerated schedule.
The 9th Circuit’s decision on the hold would stand until the lower court ruled on the constitutional issues.
The Trump administration argued Monday that the challengers lacked standing to bring the case because the two states that originally sued could not show their residents face immediate harm as a result of the travel ban. The Supreme Court has overturned key 9th Circuit rulings in the past on standing grounds.
The administration contends that the hold on the ban’s enforcement is excessively broad because it doesn’t even allow the government to exclude citizens of foreign countries who have never been in the United States.
“At most, the injunction should be limited to the class of individuals on whom the state’s claims rest — previously admitted aliens who are temporarily abroad or who wish to travel and return to the United States in the near future,” the Justice Department said in its brief, appearing to repeat its earlier concession that green card holders are not among those to be included in the travel exclusions.
Government lawyers also argued that any president has wide authority over immigration matters, especially when the chief executive is trying to protect Americans from terrorist attacks.
In rebuttal, groups opposed to the ban observed that citizens of the countries affected by it have not committed terrorism in the U.S., and many attacks have been committed by U.S. citizens.
A number of former national security, foreign policy and intelligence officials — including former secretaries of State John F. Kerry and Madeleine Albright, former defense secretary and CIA director Leon E. Panetta, and ex-national security advisor Susan Rice — argued that the moratorium was making the country less safe because it affected groups fighting alongside the U.S. in the Middle East and alienated American allies.
By attacking Muslim-majority countries, the ban was inflaming anti-Americanism and helping terrorist groups recruit new members, the former officials said.
Nearly 100 companies, including well-known technology firms such as Apple, Google, Twitter and Uber, argued the executive order would spur companies to move overseas to ensure they had a steady supply of talent from around the world.
The companies said the ban had already disrupted their businesses and would make it more difficult to recruit workers from overseas in the future.
Although presidents enjoy wide power over matters of immigration, opponents of the ban told the court that Trump’s order differed from the action of previous presidents in its scope and focus on countries that appeared to be chosen because of the religion of their citizens.
California joined Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Virginia, Vermont and the District of Columbia in written arguments against the travel ban.
The brief filed by attorneys general from these states, co-written by the office of California Atty. Gen. Xavier Becerra and its counterparts in New York, Pennsylvania and Massachusetts, argued Trump’s order had created unbridled chaos.
If the 9th Circuit lifted the hold, “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,” the 23-page brief said.
Becerra told reporters that medical school programs would “risk being without a sufficient number of medical residents to meet staffing needs” and “the process of admitting students to state colleges and universities would be disrupted.” More than 2,000 California students are affected by Trump’s order, he said.
Trump did receive some support Monday from a conservative group called the American Center for Law & Justice, which filed a brief in support of the government’s position, arguing against claims that the order discriminates on the basis of religion.
“Importantly,” the group wrote, “nothing in the Executive Order bans the entry of Muslims because they are Muslims or even identifies any particular religion or faith.”
The organization said that judicial intervention without a full trial can be “dangerous” when it comes to a president’s national security decisions.
Legal experts said the issues and the breadth of Trump’s order made it difficult to predict how the 9th Circuit would rule, though most expected at least a partial victory for the challengers of the travel ban.
The hearing Tuesday is likely to reveal the issues that most concern the judges and possibly how they are leaning. If Trump loses before the 9th Circuit, he could immediately ask the Supreme Court to remove the court’s injunction.
Times staff writer Patrick McGreevy in Sacramento contributed to this report.
7:45 p.m.: This story was updated throughout with additional background and analysis.
4:25 p.m.: This story was updated with news of additional briefs filed by government attorneys.
This story was originally published at 2:40 a.m.
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