Trump’s new travel ban will be harder to challenge in court, but critics say it still targets Muslims
President Trump’s revised travel ban retreats on nearly every issue that triggered chaos in airports and lawsuits in federal courts across the nation.
It will not apply to foreign students, engineers, tourists and relatives who are traveling to this country or temporarily traveling aboard. It is “prospective in nature — applying only to foreign nationals outside of the United States who do not have a valid visa,” said Homeland Security Secretary John F. Kelly.
But many critics of the first order were not declaring victory. Instead, they said they would go back to court and argue the order should still be struck down because it discriminates against Muslims.
Trump cedes the spotlight on travel order as White House tries a more familiar tack
A staple of President Trump’s early flurry of executive actions was the big reveal – the president seated behind a desk proudly displaying his new edict for the cameras.
On Monday, though, when Trump signed a second order temporarily halting travel from nations deemed to pose a high risk to U.S. security, there was no show of the president affixing his jagged penmanship to an official document. Instead, three Cabinet secretaries spoke publicly blocks from the White House.
Gone was the immediate implementation that triggered chaos the first time, replaced with a 10-day preparation period.
Both the public unveiling of the new directive and private machinations leading up to it revealed how the Trump administration was course-correcting after stumbles in its tumultuous early weeks. And sidetracked again this weekend by Trump’s unsubstantiated claims that President Obama illegally ordered surveillance of his communications during the campaign, the administration found value in demonstrating it could function relatively routinely.
Legal experts: New travel ban has a better chance of surviving court challenges than the old one
Liberal and conservative legal experts, including those who served in Democratic and Republican presidential administrations, said President Trump’s new travel ban has a better chances of surviving legal challenges when compared to his first executive order, which has been held up in federal courts.
Here’s what a few of them told the Los Angeles Times:
The new travel ban is tainted by all the same evidence of religious discrimination that doomed the old travel ban. It affects fewer people, and people with fewer ties to the United States, so that makes judicial intervention a bit harder. On the other hand, the way the Trump administration manipulated the roll-out of the new ban according to the ebb and flow of the news cycle undermines the administration’s demand for deference on the topic of national security.
— Margo Schlanger, University of Michigan law professor and former head of civil rights for the Department of Homeland Security under President Obama
I think the new order will withstand judicial scrutiny. Because it grants admission to all existing visa holders and permanent resident aliens, it is difficult to see who has standing to challenge this order.... Aliens outside our territory with no pre-existing connection to the U.S. do not have rights under the Constitution that can be recognized in court. This time, the order explicitly relies on the findings of the last administration and the agencies that the six nations in question are state sponsors of terrorism or are countries where terrorist [activities] are matters of high concern. The editing out of special exceptions for Christian minorities undermines criticism that this order arises from anti-religion bias. It will be much harder to show connections between anti-Muslim statements made during the campaign and the motives behind this order...
— John Yoo, UC Berkeley law professor who worked in President George W. Bush’s Department of Justice
This is certainly better drafted than the prior version, especially with regard to not excluding those who have the lawful right to be in the United States. But it still designates majority Muslim countries where there is no linkage to terrorism in the United States. This still runs afoul of the 1965 Immigration Act, which prohibits discrimination based on national origin. And based on prior statements of President Trump that Christians would be allowed in, this still can be challenged as a Muslim ban. Put simply, it corrects some of the problems courts found with the prior executive order, but many of the serious problems remain.
— UC Irvine Law School Dean Erwin Chemerinsky
The new travel limitation is clearly more defensible as it follows the roadmap of concerns raised by the 9th Circuit [Court of Appeals]. Thus, it can be reasonably argued that the facial invalidity of the last order has been addressed and corrected. Of course, an order can be fine on its face and still be improperly applied. Moreover, it can be legitimately asked -- given existing vetting procedures -- whether an executive order is needed at all, but that is a judgment for the president. In matters of foreign affairs, the judiciary will defer to the president so long as his actions have a conceivable rational basis and do not transgress either the Constitution or statutory limitation.
— Douglas Kmiec, Pepperdine University law professor who worked in the Department of Justice under President Reagan and President George H.W. Bush
Gold Star father Khizr Khan cancels speech in Toronto after organizers report his travel privileges were under review
Gold Star father Khizr Khan has canceled a scheduled speech in Toronto after being told his “travel privileges are being reviewed,” according to the event organizer.
Khan has lived in the U.S. since 1980 and is a naturalized U.S. citizen.
It was unclear which authorities communicated with Khan or what privileges were under review. Yolanda Choates, a spokesperson for U.S. Customs and Border Protection, declined to comment about Khan specifically.
She said in and email that the agency would notify people who were losing their membership in the Global Entry program -- which allows pre-screened travelers to speed through customs upon arriving in the country -- though there’s no indication that is what happened to Khan.
“Of course, any U.S. citizen with a passport may travel without trusted traveler status,” she said.
Khan could not be reached for comment, and the event organizer, Ramsay Talks, did not respond to an email, text message or phone message.
Khan was scheduled to speak Tuesday at a luncheon hosted by the Toronto-based organization.
The two-hour event was slated to include a presentation and question-and-answer session on “what we can do about the appalling turn of events in Washington -- so that we don’t all end up sacrificing everything,” according to the organizer.
In a statement posted on Facebook, the organizer said Khan was not told why his travel status was under review.
“This turn of events is not just of deep concern to me but to all my fellow Americans who cherish our freedom to travel abroad,” Khan said in the statement. “I have not been given any reason as to why. I am grateful for your support and look forward to visiting Toronto in the near future.”
Khan, whose family is Muslim, made national headlines after his fiery speech at the Democratic National Convention, during which he blasted Donald Trump’s rigid stance on Muslim immigration.
“Donald Trump, you’re asking Americans to trust you with their future. Let me ask you, have you even read the United States Constitution?” Khan said before pulling a pocket Constitution from his jacket. “I will gladly lend you my copy. In this document, look for the words ‘liberty’ and ‘equal protection of law.’”
Khan immigrated to the U.S. from Pakistan in 1980. He and his wife, Ghazala, became American citizens six years later.
Their son Humayun Khan was killed by a suicide bomber in Iraq in 2004. The Army captain was running toward a taxi cab approaching his troops when a bomb inside exploded. Khan was killed while the other soldiers remained safe.
Khan received the Purple Heart and the Bronze Star posthumously.
6:02 p.m.: This story was updated with information about Trusted Traveler programs.
This story was originally published at 1:12 p.m.
Iranian spokesman has muted response to new travel ban
The Iranian government, which is often given to flowery denunciations of the “Great Satan,” as it calls the United States, reacted mildly to President Trump’s new travel ban, which includes Iran among the six nations whose citizens are suspended from entering the United States for 90 days.
Iranian Foreign Ministry spokesman Bahram Qasemi said Tehran would wait and see the details of the new executive order and “would react in proportion.”
“However, we have already taken our stance regarding the first executive order and it has been released.”
In reaction to that travel ban, which was eventually suspended by a court, Iran banned U.S wrestlers from participating in a Freestyle World Cup competition in Iran, where wrestling is a major sport.
Texas attorney general praises new executive order as an answer to ‘a very real danger’
Texas Atty. Gen. Ken Paxton has hailed President Trump’s new executive order limiting refugee immigration and travel from six majority-Muslim countries.
“The executive order issued today by President Trump is a direct response to an ongoing weakness in the refugee vetting process, which was identified to Congress by multiple federal officials, but left unaddressed by the Obama administration,” Paxton said in a statement.
“In light of the looming threat of terrorism, the president has both the constitutional authority and solemn duty to take reasonable steps in securing our border. President Trump’s action shows decisiveness in answer to a very real danger, and I appreciate his efforts to protect the safety and security of Texans and all Americans.”
Paxton had also spoken out for the first travel ban. He filed a brief in the 9th Circuit Court of Appeals in support of it after the Trump administration appealed a Seattle federal judge’s Feb. 3 order calling for a nationwide halt to the first ban.
On Feb. 9, a panel of three judges from the 9th Circuit refused to reinstate the travel ban.
ACLU: The new order is ‘still a Muslim ban’
The American Civil Liberties Union, which went to court over the first travel ban, described the new executive order as “still a Muslim ban.”
“The Trump administration has conceded that its original Muslim ban was indefensible. Unfortunately, it has replaced it with a scaled-back version that shares the same fatal flaws. The only way to actually fix the Muslim ban is not to have a Muslim ban,” Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said in a statement.
“Instead, President Trump has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people,” Jadwat said.
“What’s more, the changes the Trump administration has made, and everything we’ve learned since the original ban rolled out, completely undermine the bogus national security justifications the president has tried to hide behind and only strengthen the case against his unconstitutional executive orders.”
American Center for Law and Justice says new travel ban is ‘bulletproof’
A conservative Christian organization that has filed arguments in court supporting President Trump’s first travel ban hailed the new executive order that pauses refugee immigration and travel to the U.S. by nationals of six majority-Muslim countries.
“This to me is a bulletproof order,” Jay Sekulow, chief counsel for the American Center for Law and Justice, said Monday on his radio show.
Nonetheless, “I do think there will be challenges,” Sekulow added.
The center had strongly defended Trump’s initial executive order, calling it the “proper and constitutional way to protect America” after the 9th Circuit Court of Appeals refused to overturn a national hold on the first order.
Speaking on the show, American Center for Law and Justice Executive Director Jordan Sekulow, who is Jay Sekulow’s son, said he didn’t believe the argument of the travel order being a “Muslim ban” holds.
“We’re talking about six countries,” Jordan Sekulow said, observing that the majority of predominantly Muslim countries were left off the travel ban.
For this Syrian, the new ban is causing heartache and uncertainty
For Adnan Dabdoob, a 40-year old Syrian construction worker living in Amman, Jordan, the original ban had already ruined his plans to emigrate to Pennsylvania with his wife and five children.
“We were ready to travel, we did a medical test and finished everything. We were supposed to wait a maximum one month,” he said in a phone interview.
“Then it was back to zero, like when we first came to Jordan.”
Since then, he has not been able to find work, he said, because no employer is willing to take a chance on someone liable to leave the country at any moment. The new ban, meanwhile, has only added to his misery.
“No one knows anything. The embassy hasn’t said anything, and the organizations working for us are waiting for three more months before they know what to do with everyone,” he said.
“It’s not just a matter of three months. The problem is we still don’t know what happens after, and all our waiting might be for nothing. We have no guarantees that things will return to what they were.… This could stretch out for years.”
Council on American-Islamic Relations: New executive order is ‘at its core a Muslim ban’
The Council on American-Islamic Relations, one of the first groups to announce it was suing the Trump administration after the first travel ban was signed on Jan. 27, issued a stern condemnation of President Trump’s new executive order on immigration and refugees on Monday.
“This executive order, like the last order, is at its core a Muslim ban, which is discriminatory and unconstitutional,” Nihad Awad, CAIR executive director, said in a statement.
Lena Masri, an attorney for the organization, said in a statement that the new travel ban is “merely a retooled order aimed at the same long-stated goal of banning Muslims from entering the United States.”
CAIR filed suit against the original executive order on in U.S. District Court in Alexandria, Va., on Jan. 30 in the case Sarsour vs. Trump. The case argues that the first executive order is unconstitutional because it violates the 1st Amendment’s guarantee of religious freedom and the 5th Amendment’s equal protection rights.
Iranian Americans join human rights groups in protesting new ban
Iranian Americans joined a chorus of criticism Monday over President Trump’s revised travel ban, saying at its core that it continued to target Muslims.
“Make no mistake,” the National Iranian American Council said. “The new Muslim ban is still an unconstitutional ban that targets individuals based on their religion and nationality.
“And it is still a ban that undermines rather than enhances America’s security,” the Washington-based advocacy group said.
It blamed the first version of the ban for a spate of hate crimes across the country and said countless Iranian families will no longer be able to visit relatives in the U.S. if the new measure is enacted.
Major human rights organizations echoed the objections. Margaret Huang, executive director of the U.S. branch of Amnesty International, said the order represented “the same hate and fear with new packaging” and “blatant bigotry.”
“It will cause extreme fear and uncertainty for thousands of families by, once again, putting anti-Muslim hatred into policy,” she said, and will do nothing to make the country safer.”
The New-York-based Human Rights Watch said the changes announced Monday were “merely cosmetic.”
Refugee advocates denounce Trump’s new immigration moratorium
Advocates for refugees swiftly denounced President Trump’s revised executive order that temporarily suspends the refugee resettlement program as a discriminatory and inhumane measure that threatened the nation’s long-standing commitment to protect people fleeing violence and persecution.
Refugee Council USA, a coalition of U.S. non-governmental organizations that advocates on behalf of refugees, condemned the order as a “harmful and ill-considered” action that “singles out the most vetted, most vulnerable people.”
“The order does nothing to improve our national security and will have painful human consequences,” Hans van de Weerd, chair of RCUSA said in a statement. “It will separate families and leave tens of thousands of people – mostly women and children – exposed to grave danger and despair.”
“RCUSA urges the administration to reconsider its course, consult experts on the already-thorough vetting system, and consider improvements, but to do so without stalling and drastically reducing one of the world’s strongest refugee resettlement programs,” he added.
Human Rights First, an international, nonprofit human rights organization based in New York City and Washington, D.C, also criticized the newly revised order, arguing that halting refugee resettlement threatened to damage national security and betray U.S. ideals of protecting people who are persecuted abroad.
“This order is essentially religious discrimination masquerading, once again, in the language of national security,” Eleanor Acer, a senior director at Human Rights First, said in a statement. “The order targets people from Muslim-majority countries and will sharply reduce resettlement of Muslim refugees. Legal word-smithing cannot obscure the discriminatory intent and impact of the order.”
Washington state attorney general who brought down first travel ban is looking at ‘next legal steps’
The attorney general of Washington state, whose case against President Trump’s initial travel ban brought that planl to a halt, said Monday that his office is considering its “next legal steps” concerning the administration’s new travel order.
“By rescinding his earlier executive order, President Trump makes one thing perfectly clear: His original travel ban was indefensible — legally, constitutionally and morally,” Atty. Gen. Bob Ferguson said in a statement.
“The president has capitulated on numerous key provisions blocked by our lawsuit, including bans on Green Card holders, visa holders and dual citizens, an indefinite ban on Syrian refugees, and explicit preferences based on religion,” he said. “We are carefully reviewing the new executive order to determine its impacts on Washington state and our next legal steps.”
Ferguson said he would have more to say later Monday.
After Washington and Minnesota sued against the first travel ban in a Seattle federal court, U.S. District Judge James L. Robart issued a national restraining order on Feb. 3 blocking its enforcement until the constitutionality of the order could be decided. That restraining order was upheld by the 9th U.S. Circuit Court of Appeals after the administration challenged it.
In response to those rulings, Trump said the new executive order would be “tailored” to the “bad” decisions.
The Seattle case is still pending.
Travel ban ‘not important for us,’ Iraqi imam says. The U.S. must simply ‘protect us’ from Islamic State
Imam Ahmed Rakan Ahmed was preparing for evening prayers Monday at his mosque in East Mosul, Iraq, when he heard about the revised travel ban signed by President Trump.
Militants had forced him to flee with his family when they captured the city but he returned and reopened the mosque in December. Many of the families it serves are poor, but they have been gathering donations for those worse off as fighting has shifted to the city’s west side.
“The executive order, for the Mosulawi people, it’s not important for us. What’s important for us is what’s happening on the west side of Mosul, those displaced people who are suffering,” the Muslim spiritual leader said as the call to prayer sounded.
“On the military side, America did a lot, and we are thankful for that,” he said, but added that the U.S. should have stayed long enough after its invasion of Iraq to prevent Islamic State from forming. “America is responsible. It’s their duty to protect us.”
Republicans initially quiet on new travel ban but Democrats slam it: ‘A watered-down ban is still a ban’
President Trump’s revised travel ban brought swift criticism from Democrats in Congress on Monday, while Republicans who largely back the White House approach remained notably silent.
Most Republicans have supported Trump’s efforts to halt visitors from several predominantly Muslim countries entering the United States. But GOP lawmakers endured blowback after the administration’s botched rollout of its initial travel ban in January, which erupted in protests and airport disruptions in cities across the nation. Lawmakers heard complaints from businesses, colleges and residents, and Republicans responded more cautiously this time.
“I look forward to reading the details of the president’s new executive order and conducting oversight to ensure it is implemented smoothly,” said the Republican chairman of the House Homeland Security Committee, Rep. Michael McCaul of Texas.
Speaker Paul D. Ryan (R-Wis.) and Senate Majority Leader Mitch McConnell (R-Ky.) did not immediately comment.
Democrats, though, wasted no time blasting the executive order that they say will do little to protect the country from terrorism and sends a discriminatory message to refugees and migrants around the world.
“A watered-down ban is still a ban,” said Senate Minority Leader Charles E. Schumer (D-N.Y.) “Despite the administration’s changes, this dangerous executive order makes us less safe, not more; it is mean-spirited, and un-American. It must be repealed.”
Added Sen. Cory Booker (D-N.J.): “A rebranded Muslim ban is still a Muslim ban, plain and simple.”
“This is not who we are,” said Sen. Catherine Cortez Masto (D-Nev.).
Iraqis fighting with U.S. against Islamic State say they need option to travel to the U.S. ‘like a back door’
Abu Hasan, a commander of popular mobilization forces fighting to free Mosul from Islamic State, was standing at a checkpoint on the outskirts of the city at dusk when he heard about President Trump’s revised travel ban.
“The people of Iraq suffered a lot of terrorism. The order was wrong, wrong, wrong,” he said of the original travel ban that included Iraq. “We are defending not just Iraq but the world against Islamic State. Hopefully our relationship with the Americans will develop and we will have an alliance against terrorism.”
Ahmed Galadi, 30, a federal police officer with the emergency response division fighting in West Mosul, was encouraged by the revised ban, which he called “a secure decision.”
Galadi, a father of two, worked with U.S. forces for years and has paid a steep price. In 2009, his twin brother was killed while driving his car, shot in the head by a militia member who mistook him for Galadi.
“My family doesn’t know I’m working with Americans now. If they did, they would say, ‘Once the Americans go, where will you go? Because the militias will kill you,’” he said.
He knows of scores of other Iraqis who worked with U.S. forces and were later killed in his native Diwaniyah, south of Baghdad.
He wants the option of fleeing to the U.S. if needed, especially for his wife, 12-year-old son and 7-year-old daughter, “like a back door.”
He said the earlier travel ban for Iraq needed to be lifted “for all those who work with Americans. We should have an opportunity because we are the guys who want to make Iraq better.”
In his new order, Trump quietly revokes the first travel ban that caused widespread chaos
Two lines near the bottom of President Trump’s new travel order wiped away his original ban, an apparent attempt to end court battles over his first directive that sparked widespread protests.
Trump’s new travel restrictions are more narrowly tailored to avoid the type of judicial censure that followed the initial action signed Jan. 27 in Trump’s first week in office.
“Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order,” the new order reads.
Many Iraqis are hoping they will be able to travel soon to the U.S.
Rachel Ramey and her Iraqi husband applied for a U.S. visa almost a year ago. She was shocked by the first travel ban, which suspended travel for Iraqis and still felt “nervous” after hearing about the revised ban.
“What if we get to the airport and have everything together and they say, ‘No, we’re denying you,’” said Ramey, 33, a teacher, from her home in the northern city of Sulaymaniyah.
She said the revision was “encouraging” but until the vetting process is spelled out, “It’s just more delay.”
“There doesn’t seem to be much clarity on whether the process was paused or is this going to be another six months,” said Ramey, who is trying to return home to the U.S. with her husband to start a family.
The couple have been married two years and have already provided documentation of their relationship to U.S. officials, Ramey said, including old love letters.
Lawyer who sued Trump over first travel ban: It’s ‘time to go to court’ again
Justin Cox, a lawyer at the National Immigration Law Center who took the Trump administration to court over the first travel ban and won a hold almost immediately from a Brooklyn federal judge, said he sees little “substantive” difference between the old ban and the new one.
Cox, who represents plaintiffs in Darweesh vs. Trump, a case that is still pending in the courts, said his organization is ready to fight the new ban.
“This new ban is just tinkering on the edges of the old one. But the underlying legal claims against it don’t change that much,” said Cox.
Cox said his group and others will “absolutely” be able to sue over the new order.
“What is more challenging is finding folks who clearly have standing” to sue, he said.
That’s because the new order exempts people with green cards from the ban, doesn’t state a preference for refugees who are religious minorities and will not go into effect immediately, leaving fewer chances for the chaos over admission and detention of visa holders at U.S. airports that came with the previous order.
Still, Cox said, it’s “time to go to court” over the new order.
The Darweesh case was filed in U.S. District Court in Brooklyn, N.Y., on behalf of two Iraqis who had been approved for resettlement in the U.S. but were detained at John F. Kennedy airport because of the first travel ban. Iraqis are not included in the new executive order.
Homeland Security posts fact sheet, Q&A on Trump’s revised travel ban
Trump administration draws contrast with new travel ban rollout aimed at avoiding chaos of the first one
Top Trump administration officials said the revised ban on travel from six Muslim majority countries has been explained thoroughly to members of Congress and the news media prior to its Monday morning release, hoping to draw a contrast with the earlier ban that was met with confusion in the days after Trump was inaugurated.
“There should be no surprises — whether it’s in the media or on Capitol Hill,” Homeland Security Secretary John F. Kelly said during an announcement at the Department of Homeland Security.
Kelly spoke alongside Secretary of State Rex Tillerson and Atty. Gen. Jeff Sessions. None took questions. The briefings they spoke about were all done off-camera. And, in the case of the media briefing, the administration did not allow officials to be quoted by name.
The tightly orchestrated unveiling speaks to the sensitivity around the order. The first version was blocked in the courts. Trump signed Monday’s order behind closed doors, in contrast to the public show he has made when signing other directives in front of television cameras.
The three administration officials’ comments seemed designed to help the new order withstand judicial scrutiny. All three said Trump was acting in his duty to protect the country. Kelly invoked the Sept. 11 attacks.
”Those attacks taught us that we cannot take our nation’s security for granted,” Kelly said.
Sessions pointed to the Constitution. “Our founders wisely gave the president the authority and the duty to defend our nation,” he said.
Read President Trump’s new executive order on travel and refugees
Here is the full text of President Trump’s latest executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” as provided by the White House:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals. The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP.
(b) On January 27, 2017, to implement this policy, I issued Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States).
International Rescue Committee criticizes new travel ban
The International Rescue Committee, one of the country’s major refugee resettlement organizations, criticized the Trump administration’s new travel ban as “a gift for extremists who seek to undermine America.”
“These refugees are now stranded in crisis zones, in many cases separated from their families in the United States. Far from making us safer, by excluding this most vetted and most vulnerable population, the executive order helps terror groups by providing yet another platform for anti-American propaganda,” the group said in a statement.
The new travel order is “a ban that heartlessly targets the most vetted and most vulnerable population to enter the United States,” said IRC President and CEO David Miliband, who is a former British foreign minister. The group’s resettlement program is in place in 28 U.S. cities.
“This ban doesn’t target those who are the greatest security risk, but those least able to advocate for themselves. Instead of making us safer, it serves as a gift for extremists who seek to undermine America,” he said.
Trump orders new, narrower travel ban
President Trump today signed an executive order ordering new travel restrictions for residents of six Muslim-majority countries as well as a temporary ban on refugees from around the world, retooling a directive issued five weeks ago that stoked chaos at the airports and drew international condemnation and a rebuke in the federal courts.
The new ban, which is set to take effect March 16, halts travel for 90 days for residents of Iran, Libya, Somalia, Sudan, Syria and Yemen. The refugee suspension will last 120 days.
Revised travel ban is likely to come today, White House official says
The new version of President Trump’s controversial limits on entry for travelers from some predominantly Muslim countries will strike Iraq from the list and clarify that legal permanent residents are still allowed in the U.S., senior White House counselor Kellyanne Conway said Monday.
White House officials have indicated for days that a new iteration of the January order — now stuck in legal limbo — was imminent, though plans for when to release it have changed. Conway and White House Press Secretary Sean Spicer said it would come Monday.
“This is a very important week in this White House, where the president is going to continue to act on, along with the Congress, major pieces of his legislative and executive agenda,” Conway said on Fox News’ “Fox & Friends,” citing the travel ban order as one piece of Trump’s plan.
Conway said the order contained “six or seven major points” that clarify who would be covered. In addition to removing Iraq from the list of seven Muslim-majority nations covered in the initial order, Syrian refugees would be subject to the same 120-day admission ban that refugees from other nations were; initially, Syrian refugees were to be barred indefinitely.
The new order is to take effect March 16, Conway said.
In defending the hasty rollout of the initial Jan. 26 directive, White House officials said they were acting with urgency to address an ongoing security threat. But after a Washington state federal judge issued a blanket restraining order to halt its implementation, which was sustained by a three-judge panel on the 9th U.S. Circuit Court of Appeals, the White House said it would focus on drafting a new order.
During a weekend escape to his Mar-a-Lago retreat, Trump dined Saturday with Atty. Gen. Jeff Sessions and Secretary of Homeland Security John F. Kelly, as well as top White House officials involved in the order, including counsel Don McGahn, chief strategist Stephen Bannon and senior policy advisor Stephen Miller.
Watch live: Trump administration to reveal revised travel ban
Press Secretary Sean Spicer downplays 9th Circuit Court decision against Trump’s travel ban
In a Facebook Live interview with Breitbart, the right-wing website formerly led by chief White House strategist Stephen K. Bannon, White House Press Secretary Sean Spicer tried to downplay Thursday’s decision in the U.S. 9th Circuit Court of Appeals.
“Tonight was just a procedural ruling on the temporary restraining order. We look forward to a full hearing on the merits of this case, and we feel very confident that we’re going to prevail,” Spicer said in the two-and-a-half-minute video.
He said the White House and President Trump would “examine our legal options,” and he defended the implementation of the executive order.
The court declined to order the reinstatement of the president’s moratorium on refugees and on travel from seven mostly Muslim countries. The halt on the controversial travel rules was ordered last week by a federal judge in Seattle as an emergency pause while a lawsuit from the states of Washington and Minnesota proceeded.
Trump has suggested he will appeal the case to the Supreme Court.
New York attorney general praises 9th Circuit Court decision
New York Atty. Gen. Eric T. Schneiderman called Thursday’s decision “a major victory for the rule of law.”
“State attorneys general have been leading the fight against President Trump’s order on behalf of the many universities, hospitals, businesses and residents harmed by it, and today the 9th Circuit affirmed the critical role we play,” Schneiderman said.
How would the Supreme Court react to Trump over the travel ban? Not well, say legal experts
Several legal experts who weighed in on the U.S. 9th Circuit Court of Appeals decision to not order a reinstatement of President Trump’s travel ban said they thought the administration had slim chances if it appealed to the U.S. Supreme Court.
UC Irvine Law School dean Erwin Chemerinsky said it was difficult to predict whether the Supreme Court would review the decision.
“They don’t want a 4-4 split, but they really like having the last word on high-profile cases,” the constitutional law expert said.
John Yoo, a law professor at UC Berkeley who worked for President George W. Bush’s administration and helped write a memo justifying torture of terrorism suspects, said the Supreme Court was unlikely to agree to review the decision.
The inclusion of green-card holders in the travel ban doomed it legally, Yoo said, and the Supreme Court rarely agrees to hear such emergency appeals in any case.
Jessica Levinson, a law professor at Loyola Law School in Los Angeles, said she thought the Supreme Court would take up the question of whether to reinstate the travel ban.
“This is probably going to the Supreme Court, but I don’t think it’s going anywhere good for Donald Trump — even if the Supreme Court rules along party lines and is deadlocked, because the lower court’s decision would stand.”
If the Supreme Court did not take up the case or took it and was split in its ruling, the decision of the 9th Circuit Court would stand.
If it did not go to directly to the Supreme Court, the Trump administration could also ask the full 9th Circuit to review its request, said Margo Schlanger, a law professor at the University of Michigan who was the head of civil rights for the Department of Homeland Security under President Obama.
But with a unanimous decision from the three judges who issued Thursday’s opinion, Trump’s chances are not good in what’s known as one of the country’s most reliably liberal appeals courts.
California’s top prosecutor praises 9th Circuit Court decision
California Atty. Gen. Xavier Becerra, whose office joined 16 other states and the District of Columbia in urging the U.S. 9th Circuit Court of Appeals to reject President Trump’s appeal, said the court ruled “on the side of justice.”
“While today’s court ruling may not mark the end of our fight, its decision to preserve the suspension of the Trump administration’s travel ban means that our families and businesses and our state institutions and universities can continue forward without harmful disruption,” Becerra said.
Ruling sends a message, UC Irvine Law School dean says: ‘No one, not even the president, is above the law’
UC Irvine Law School Dean Erwin Chemerinsky said he thought the most important part of the U.S. 9th Circuit Court of Appeals’ ruling on President Trump’s travel ban dealt with Trump’s claim that his executive order could not be reviewed by the courts.
The 9th Circuit judges firmly rejected that argument, calling it “contrary to the fundamental structure of our constitutional democracy.”
The law professor said the 9th Circuit reaffirmed “the most basic aspect of the rule of law: No one, not even the president, is above the law, and it is the role of the courts always to review the constitutionality of government actions.”
Kellyanne Conway says ‘we will get our day in court’
This ruling does not affect the merits at all. It is an interim ruling, and we are fully confident that now that we will get our day in court, and have an opportunity to argue this on the merits, that we will prevail.
— Kellyanne Conway, a senior advisor to President Trump, speaking on Fox News
Bush administration lawyer John Yoo says Trump lost because executive order was haphazard and rushed
John Yoo, a UC Berkeley law professor who worked for President George W. Bush’s administration and helped write a memo justifying torture of terrorism suspects, said the Supreme Court is unlikely to agree to review the decision.
The inclusion of green-card holders in the travel ban doomed it legally, Yoo said, and the Supreme Court rarely agrees to hear such emergency appeals in any case.
Yoo said the 9th Circuit was on less solid ground on other issues: whether the states had standing to sue and whether visa holders had a right to a hearing before their visas were canceled.
The administration lost because “it rushed out this order in an ill-considered and haphazard way,” the legal scholar said. A “more cautious, more modest” executive order would have survived legal scrutiny, he said.
Hillary Clinton trolls Trump on his court losses: ‘3-0’
Former Democratic presidential candidate Hillary Clinton appeared to deliver a burn against President Trump on Thursday over his defeat in court:
Clinton was presumably referring to the unanimous ruling by a three-judge panel of the U.S. 9th Circuit Court of Appeals.
Eric H. Holder Jr., the former U.S. attorney general under President Obama, also weighed in with a “3-0.” He added the hashtag #thankyousally and a photo of former acting Atty. Gen. Sally Yates, whom Trump fired after she refused to defend the travel ban.
Constitutional law professor praises court’s legal precision
Douglas Kmiec, a professor of constitutional law at Pepperdine University, praised the court’s legal precision.
“It was very carefully worded. The court was careful to indicate it wasn’t deciding the underlying policy” of the travel ban, said Kmiec, who served in the Department of Justice’s Office of Legal Counsel under presidents Ronald Reagan and George W. Bush and was the U.S. ambassador to Malta under President Barack Obama. “Their reasoning is quite well considered.”
‘This victory should not lead to complacency,’ leader of Muslim civil rights group says
While this decision is critical, it is not the end of the legal process. Other courts across the country will be passing judgment on this order, and the U.S. Supreme Court will likely weigh in at some point. This victory should not lead to complacency. This and other Trump administration orders and policies still pose a threat to communities of color, religious minorities, women and others.
— Nihad Awad, executive director of the Council on American-Islamic Relations
Passions fly after court rules against Trump on travel ban
When the 9th U.S. Circuit Court of Appeals ruled that President Trump’s travel ban would stay suspended, the reaction was passionate and immediate, starting with one of the plaintiffs, the Washington state attorney general:
Trump, too, had an all-caps response.
The American Civil Liberties Union, one of the many plaintiffs around the nation who have sued the administration over the travel ban, said this was just the first step.
The ACLU also noticed something familiar in the language of Trump’s tweet.
Former Republican Arkansas Gov. Mike Huckabee accused the court of protecting terrorists.
The Council on American-Islamic Relations, which is opposed to the ban, greeted the ruling with a sigh of relief.
‘No one is above the law,’ Washington attorney general says
No one is above the law, not even the President. The President should withdraw this flawed, rushed and dangerous Executive Order, which caused chaos across the country. If he refuses, I will continue our work to hold him accountable to the Constitution.
— Washington Atty. Gen. Bob Ferguson, who brought the lawsuit against President Trump along with the state of Minnesota
‘Radical Islamic terrorists are at war with America,’ conservative group says after court ruling
This decision is disappointing and clearly puts our nation in grave danger. The fact is that President Trump clearly has the constitutional and statutory authority to issue this order. It is clear: radical Islamic terrorists are at war with America. President Trump’s order is a proper and constitutional way to protect America.
— Jay Sekulow of the American Center for Law and Justice, a conservative Christian organization that filed an appeals court brief in support of Trump’s travel ban
Conservative challenge to Obama immigration orders comes back to haunt Trump
The liberal states that challenged President Trump’s travel ban got an important, although unintended, legal boost from conservatives who challenged one of President Obama’s major immigration programs.
When a federal judge in Seattle blocked Trump from enforcing his immigration executive order, he gave his stay nationwide effect. Lawyers for the administration argued that the judge’s decision should be limited to just the two states which had brought the challenge -- Washington and Minnesota.
But the 9th Circuit Court of Appeals, in deciding to keep Trump’s order on hold, rejected that argument. The judge’s order should apply across the country, they said, because the government needs to have a “uniform immigration law” in all 50 states.
To support that part of the ruling, the three-judge 9th Circuit panel cited a decision in 2015 from the 5th Circuit. That court had ruled against an Obama administration program that tried to shield from deportation several hundred thousand parents of young people who had arrived in the U.S. illegally while they were children.
Texas, which successfully sued to block Obama’s so-called DAPA program, had argued that its suit should have nationwide effect, and the 5th Circuit had agreed, citing the need for uniformity.
The Supreme Court, on a 4-4 vote, upheld that ruling in 2016.
Law professor Jessica Levinson says case isn’t ‘going anywhere good for Donald Trump’
It’s really important that the opinion is unanimous because judges that were appointed by Democratic and Republican presidents came to the same legal conclusion. This is probably going to the Supreme Court, but I don’t think it’s going anywhere good for Donald Trump — even if the Supreme Court rules along party lines and is deadlocked, because the lower court’s decision would stand.
— Jessica Levinson, law professor at Loyola Law School in Los Angeles
Judges rebuke administration claim that Trump order is unreviewable
In continuing to block President Trump’s executive order banning travel from seven mostly Muslim countries, a federal appeals court rebuked the administration’s claim that presidential authority over immigration cannot be reviewed.
The administration’s sweeping assertion of presidential power “runs contrary to the fundamental structure of our constitutional democracy,” the three-judge panel of the U.S. 9th Circuit Court of Appeals wrote.
“Courts owe considerable deference to the president’s policy determinations” in areas of immigration and national security, but they still have authority to decide whether those orders violate constitutional rights, the judges said.
The states that challenged Trump’s order had made a strong claim that the ban violated the rights of U.S. residents and visa holders to due process, the judges wrote.
And, on the other side, the administration had presented no evidence that the ban was urgently needed for national security.
“The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” the judges wrote.
Putting Trump’s order on hold until a lower court can fully consider it and hear arguments will merely return the country to the status quo of a few weeks ago, they said.
‘A victory for American freedom over presidential tyranny’
Today marks a victory for American freedom over presidential tyranny. The court has sided with refugees who thirst for hope over a president who yearns to hate. In the memory of Anne Frank, a refugee America denied entry, our nation has a moral obligation to Save Every Anne. Never again means never again to anyone.
— Steven Goldstein, executive director of the Anne Frank Center for Mutual Respect
Read the 9th Circuit judges’ order: ‘Emergency motion ... is denied’
“We hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury,” the panel of two Democratic appointees and a Republican unanimously decided in an unsigned opinion.
Trump wastes no time responding to appeals court loss: ‘SEE YOU IN COURT’
President Trump was defiant Thursday in response to an appeals court panel ruling against his travel ban.
Minutes after the ruling was issued Thursday night, Trump tweeted a message in all caps: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
The decision means travelers from the seven Muslim-majority countries that fell under Trump’s restrictions will still be allowed to visit the U.S., for now.
The controversial travel restrictions that Trump signed Jan. 27 sparked chaos at airports and protests worldwide as at least 60,000 visas were voided, including those held by doctors, engineers and students who were caught outside the U.S. visiting relatives abroad.
The Department of Justice is reviewing the decision, and the Trump administration is expected to quickly appeal to the Supreme Court.
9th Circuit panel rejects White House argument that they lacked the power to review Trump’s order
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
— Judges’ decision, rejecting Trump administration argument that the courts lacked the right to review his executive order
9th Circuit court upholds stay to continue blocking enforcement of Trump’s travel ban
In a significant pushback from the judiciary, a federal appeals court decided Thursday to continue blocking enforcement of President Trump’s executive order barring travelers from seven predominantly Muslim nations from entering the United States.
A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that a Seattle federal judge’s earlier restraining order on the new policy should remain in effect while the judge further examines its legality.
The court issued the ruling “per curiam,” which means it was a unanimous decision.
The controversial travel moratorium signed Jan. 27 stirred chaos at airports and protests worldwide as at least 60,000 visas were canceled, including those held by students visiting families abroad and engineers working in the United States.
U.S. District Judge James L. Robart issued a temporary restraining order blocking enforcement of the order last week after concluding that a challenge by the states of Washington and Minnesota was likely to succeed.
Judges could seek a middle ground on Trump’s travel ban by shielding only certain travelers
The government lawyer defending President Trump’s foreign travel ban made an unusual closing plea when arguing this week before a panel of U.S. 9th Circuit Court judges.
Sensing he had not convinced them, Justice Department attorney August Flentje suggested they issue a middle-ground ruling that would shield some travelers, but not others.
He said the temporary restraining order issued by Judge James L. Robart in Seattle is “vastly over-broad,” because it extends to many thousands of foreigners who have obtained U.S. visas but have never used them to travel here.
Instead, Flentje urged the judges to focus on the “core concerns” raised by those who challenged Trump’s order, such as foreign students, doctors, technology company executives and tourists who were in the process of traveling to or from the United States and one of seven Muslim-majority nations targeted by Trump’s order. When the ban was announced, many of these people were trapped outside the U.S. or detained upon arrival in the initial confusion over the rollout.
U.S. 9th Circuit Court of Appeals says a decision will come today on Trump administration’s travel ban
The U.S. 9th Circuit Court of Appeals plans to issue an opinion today on President Trump’s travel ban.
“An order will be filed in this case before the close of business today,” David J. Madden, assistant circuit executive, wrote in an email.
The court is deciding on a request from the Department of Justice to stay a Seattle federal judge’s restraining order last week that halted enforcement of Trump’s travel restrictions nationwide.
Government lawyers have asked three judges on the 9th Circuit in San Francisco to in effect reinstate the moratorium on travel. Lawyers from Washington and Minnesota, which sued the Trump administration, have argued the travel ban hurts their residents and economies and amounts to religious discrimination against Muslims.
The Trump administration has said the moratorium is necessary to protect against terrorism until more stringent vetting measures on new arrivals can be put into place.
The 9th Circuit will not be deciding on the constitutionality of Trump’s executive order but only whether it should be enforced while litigation over it proceeds.
9th Circuit Court of Appeals says there will be no ruling today on Trump administration’s travel ban
The 9th Circuit Court of Appeals, which is considering arguments over lifting a temporary halt to President Trump’s controversial travel ban, said Wednesday morning there would be no decision issued today.
Three judges from the court heard arguments from Department of Justice and Washington state attorneys Tuesday afternoon over whether to reinstate Trump’s executive order stopping refugee admission and immigration from seven mostly Muslim countries.
The ban had been put on hold nationwide Friday following the order of a federal district judge in Seattle who is presiding over a lawsuit from Washington and Minnesota states against the ban. The Trump administration has asked the 9th Circuit to reverse the Seattle decision.
“The court will not be issuing a decision today. Also, the court will provide advance notice of 60 to 90 minutes when a decision is imminent,” David Madden, an 9th Circuit official, said in an email.
After Tuesday’s hearing, Judge Michelle Friedland of the 9th Circuit said the court would come to a decision “as soon as possible.”
It’s widely expected that a decision will be reached this week. If the halt on the ban is kept in place, the Justice Department is expected to ask the for a review from the full court to or ask the Supreme Court to take up the issue.
Sessions will face a tough job at the Justice Department -- and Trump isn’t making it any easier
After enduring an unusually bitter confirmation battle for a sitting U.S. senator, Jeff Sessions will barely have time to settle into his fifth-floor office at the Justice Department before he takes center stage in some of the nation’s most acute controversies.
If the Senate confirms Sessions as attorney general on Wednesday night, as expected, he will be responsible for leading the legal defense of President Trump’s immigration restrictions, for halting and investigating terrorist attacks, and for probing hate crimes and abuses by local and state law enforcement.
He also is expected to play a key role in implementing Trump’s promised crackdown on illegal immigration by increasing deportations.
His boss isn’t making things easier. Last weekend, Trump denounced a federal judge in Seattle who had temporarily blocked his executive order suspending immigration and refugees from seven predominantly Muslim countries.
A three-judge panel from the 9th U.S. Circuit Court of Appeals in San Francisco heard arguments Tuesday on the government’s effort to lift the stay. The judges did not issue an immediate ruling, and Trump complained Wednesday that the legal process was taking too long.
“You could be a lawyer, or you don’t have to be a lawyer. If you were a good student in high school or a bad student in high school, you can understand this, and it’s really incredible to me that we have a court case that’s going on so long,” Trump told a police chiefs’ conference in Washington.
The legal battle over the travel ban is expected to wind up in the Supreme Court.
Here’s an early look at how questioning went in the appeals court review of Trump’s immigration ban
A federal appeals court panel reviewing President Trump’s controversial limits on travel from seven predominantly Muslim countries appeared inclined Tuesday to rule that two states had the right to challenge the ban.
During a hearing that lasted over an hour, at least two of the three judges on the U.S. 9th Circuit Court of Appeals panel expressed skepticism over the Trump administration’s arguments.
The court is considering the government’s appeal of a federal judge’s order temporarily preventing enforcement of the travel ban, which blocks admissions from seven predominantly Muslim countries to help protect against terrorism.
Why you shouldn’t read too much into oral arguments in the Trump immigration case
At different times during oral arguments in the U.S. 9th Circuit Court of Appeals over whether to reinstate President Trump’s travel ban it looked like either Washington state attorney Noah G. Purcell or Justice Department attorney August E. Flentje had the upper hand.
Both lawyers faced sharp questioning, but legal experts cautioned not to read too much into the matter.
“It seemed like Washington state had a better argument. The Department of Justice attorney really struggled with articulating why the executive order had to remain in place,” said Jessica Levinson, a law professor at Loyola Law School in Los Angeles.
But she added: “The reason you can’t read a lot into oral arguments is that it’s the judges’ job to perform a searching inquiry on both sides. I think people who haven’t heard oral arguments may hear the questions for the Department of Justice and they say, ‘Oh my God, these are such sharp questions, and maybe they don’t agree at all with the federal government.’”
What’s important to keep in mind, she said, is “It’s the judges’ job to play devil’s advocate. It’s their job to help the attorneys articulate their best argument. It’s their job to also try to convince their colleagues.”
Arthur Hellman, a law professor at the University of Pittsburgh, viewed the Justice Department attorney as not seeming “very well prepared for the questions about standing, though he recovered a bit toward the end of his argument.”
“I was surprised that he didn’t have more examples of terrorist activities by people from the affected countries, even if the examples weren’t in the record,” Hellman said.
During a series of tense questions directed at Purcell, Judge Richard Clifton seemed doubtful that arguments that the travel ban was anti-Muslim were valid, Hellman added.
“I was surprised at the tone of some of some of Judge Clifton’s questions for the Washington state attorney,” he said. “He seemed almost angry. But later he was also a little hard on the federal government attorney.”
Carl Tobias, a law professor at the University of Richmond in Virginia, said he believed the judges could uphold a lower court decision halting the Trump administration’s travel ban nationally. The Justice Department would then either ask for the full court to review a stay on Trump’s travel rules or ask the U.S. Supreme Court to take up the issue.
Yet, he said, “It is always difficult to discern how a panel of judges will rule based on oral argument, and especially difficult in a high-stakes case like this one.”
One legal expert’s prediction: Appeals court will send Trump immigration ban back to federal judge in Seattle
Brian Goldman -- a former law clerk to Supreme Court Justice Sonia Sotomayor and 9th Circuit Court Judge Stephen Reinhardt, and author of an appellate lawyer’s guide to practicing before the U.S. 9th Circuit Court of Appeals -- provided a running commentary on Twitter to Tuesday’s arguments on the Trump administration’s immigration ban.
Check out his predictions and analysis on the case:
For the record, 6:40 p.m.: This article was edited to correct the spelling of the analyst’s name. It is Goldman, not Gorrick.
With hearing over, 9th Circuit Court says it will issue decision ‘as soon as possible’
After hearing more than an hour of arguments from attorneys for Washington state and the Justice Department over whether to reverse a stay of President Trump’s immigration restrictions, Judge Michelle Friedland of the U.S. 9th Circuit Court of Appeals said the court would come to a decision “as soon as possible.”
Legal experts said they expected to hear from the court within days. An earlier news release from the court said that “a ruling is not expected to come down today” but would “probably” be issued this week.
In addition to oral arguments and answers to questions the attorneys were asked Tuesday, the court has received hundreds of pages of briefs from the chief attorneys in the case, as well as from technology companies, state attorneys general and other parties who have sought to join in.
Appellate hearing over Trump’s travel ban gets massive online and TV audience
Tuesday’s oral arguments over President Trump’s travel ban had a massive public audience Tuesday, as audio of the U.S. 9th Circuit Court of Appeals hearing was broadcast live both on the Internet and on cable television.
More than 135,000 people tuned in on the court’s official YouTube live stream to listen to attorneys for the state of Washington and the U.S. Department of Justice argue over the ban in front of a three-judge panel.
CNN and MSNBC also took the unusual step of broadcasting live audio of the hourlong hearing, as did many news websites, making it difficult to size up the exact audience for the arguments.
Court questions whether Trump’s travel ban amounts to anti-Muslim discrimination
For several consecutive minutes during Washington Solicitor Gen. Noah Purcell’s arguments at the U.S. 9th Circuit Court of Appeals, judges repeatedly prodded Purcell on whether President Trump’s travel ban amounted to anti-Muslim discrimination.
“The seven countries encompass only a relatively small percentage of Muslims,” Judge Richard Clifton, an appointee of President George W. Bush, said at one point.
“I have trouble understanding where we’re supposed to infer religious animus,” said Clifton.
During the arguments, Clifton asked Purcell how the ban could be seen as anti-Muslim if it affected only a subset of Muslims.
“To prove religious discrimination we do not need to prove this order harms only Muslims … or every Muslim,” said Purcell, pointing to the president’s past public statements on a “Muslim ban” and preference for Christian refugees.
Clifton asked if the travel ban was the specific “shutdown” of all Muslim immigration that Trump had promised during his campaign.
“No,” said Purcell.
Updated at 5:05 p.m.: An earlier version of this post incorrectly attributed a comment about religious animus to Judge William Canby. It was Judge Richard Clifton who made the remark.
Trump’s words come back to bite him in court hearing
As a federal appeals court heard arguments over the validity of President Trump’s executive order temporarily banning travel from seven mostly Muslim countries, some of the strongest evidence for his opponents came from the president’s own words.
A key argument in the case is whether Trump’s executive order violated the Constitution’s ban on religious discrimination. Lawyers for the states of Washington and Minnesota have alleged that the order was designed to discriminate against Muslims.
Asked for evidence to support that claim, the lawyer for Washington pointed to “the public statements from the president and his top advisors,” which he described as “rather shocking.”
Trump called for a “Muslim ban” during his presidential campaign, Noah G. Purcell said. And the day he signed the order, he gave an interview to a Christian television network in which he said he wanted to give priority to Christian refugees.
The evidence indicates that the order was “intended to favor some religious groups over others,” Purcell said, which would be a violation of the 1st Amendment’s ban on an established religion.
Purcell encountered some skepticism from one member of the panel, Judge Richard R. Clifton, who noted that the seven countries covered by the order make up only a small part of the world’s Muslim population. That would suggest that the order wasn’t aimed at Muslims, in general, but at residents of countries that have a serious problem with terrorism, Clifton said.
“We do not need to prove” that the order “harms every Muslim,” Purcell responded, just that it was intended to discriminate based on religion.
Trump’s comments were also the reason that led former acting U.S. Atty. Gen. Sally Yates to say that the Justice Department would not defend the executive order. Trump fired Yates for taking that position.
Judges ask about limiting parts of the travel ban, rather than blocking it entirely
Judges considering whether to reinstate President Trump’s travel ban showed interest in the government’s argument that at most the ban should be limited, rather than blocked entirely.
Government attorneys have argued that the temporary restraining order issued by James L. Robart, a Seattle federal judge, went too far in effectively shutting down implementation of Trump’s ban nationwide.
“It is overbroad.... It shouldn’t cover people who have never been to the United States,” said August E. Flentje, the government attorney. He said any restraining order should only apply to foreigners from the 7 countries who currently live in the U.S. and were caught outside the country, or only to those living in Washington state.
Judge Richard Clifton, an appointee of George W. Bush, appeared to agree. “Why isn’t it overbroad?” he asked the state’s lawyer.
The exchange left open the possibility that the U.S. 9th Circuit Court of Appeals judges could issue a compromise decision that blocked part of Trump’s order, but not all of it.
Courts rarely second-guess the president on national security. But that doesn’t mean they can’t, experts said
In making the case to reinstate President Trump’s executive order on immigration, attorneys for the Department of Justice have zeroed in on the chief executive’s authority to decide issues of national security.
That power, they argued in court papers, is sacrosanct and should not be challenged, as it was by the judge who issued a sweeping emergency order last week that halted the travel restrictions.
“Judicial second-guessing of the President’s determination,” the lawyers wrote in a brief, “would constitute an impermissible intrusion on the political branches’ plenary constitutional authority over foreign affairs, national security, and immigration.”
But in the lead up to the 9th Circuit Court of Appeals’ hearing Tuesday to decide whether to lift the hold, experts on national security law questioned that line of argument, saying it was too broad-- and legally tenuous.
While federal courts generally defer to the president on issues of national security, that deference is not unlimited, legal scholars said.
The tendency by judges not to question the president on national security issues is rooted in the belief that the president, aided by national security advisors and the wealth of information at their disposal, is in the best position to make such decisions, said Matt Waxman, a national security law expert at Columbia University.
“But I’d argue that is a customary practice that is heavily reliant on the credibility of the executive branch,” said Waxman, who served on the National Security Council and in the State Department under President George W. Bush.
Trump, Waxman said, “squandered a lot of that credibility” with his “wild and shifting claims about national security” and his unorthodox decision not to seek input from national security experts before rolling out the travel ban.
“I think it is quite possible and even likely the courts will not show the president the same level of deference they have shown previous presidents on national security,” he said.
Shirin Sinnar, a national security expert at Stanford Law School, echoed Waxman.
“It is a unique situation here,” she said. “We know national security agencies were sidelined, so it is hard to see how this idea of the executive branch being entitled to deference would apply.”
And Stephen Vladeck, a law professor at University of Texas, said: “The problem with the government’s argument is it’s breadth.”
The courts increasingly have been willing to wade into issues of national security over the past 15 years, pushing back on efforts by the executive branch to make unilateral decisions, Vladeck said. He pointed to habeas corpus cases filed on behalf of detainees held at the government’s Guantanamo Bay detention facility.
This post was edited to correct the quote from Shirin Sinnar. She referred to multiple national security agencies, not the National Security Agency.
U.S. 9th Circuit judges appear to agree that states have standing to challenge travel ban
A panel of U.S. 9th Circuit Court of Appeals judges pushed back on the notion that the state of Washington should not be allowed to sue on behalf of its resident immigrants to block President Trump’s travel ban.
They noted that the Supreme Court recently recognized that a wife could sue on behalf of her husband, an Afghan who was denied a visa to join her in the United States.
“His wife was allowed to sue,” said Judge William Canby, referring to the case Kerry vs. Din.
The exchange strongly suggests the judges believe the legal claim filed by Washington state lawyers will not be thrown out on standing.
As court arguments begin on travel ban, administration runs into skeptical questions
A lawyer for the Trump administration ran into skeptical questions from a panel of federal judges as the 9th Circuit Court of Appeals began a hearing on the president’s travel ban.
“Haven’t there been allegations here of bad faith” by President Trump in his decision making, asked Judge Michelle T. Friedland, referring to claims that the executive order restricting travel from seven countries was a thinly disguised way of banning Muslims from the country.
The three-judge 9th Circuit panel is hearing arguments on whether to allow Trump’s executive order to go into effect. A district court judge in Seattle has issued a temporary restraining order blocking the government from putting the executive order into effect.
All three of the judges on the panel asked attorney August E. Flentje, representing the federal government, for evidence that people holding valid visas from any of the seven countries had committed terrorist acts in the United States.
“The president determined there was a real risk,” Flentje said.
Judges again asked if there is any other evidence. “The proceedings have been moving very fast,” Flentje said, explaining that so far the record of the case does not include any such evidence.
Friedland quickly shot back that the reason the proceedings were moving quickly was that the administration had filed an emergency appeal rather than allow the district court to hold a full hearing.
“Are you arguing then that the president’s decision in that regard is unreviewable?” Friedland asked.
“Yes,” the government attorney responded.
More than 50,000 are listening to 9th Circuit oral arguments
Appeals court decision on Trump travel ban will ‘probably’ come this week
The U.S. 9th Circuit Court of Appeals, where a panel of three judges will hear arguments over whether President Trump’s travel ban should be reinstated or kept on hold as a lower court case against it proceeds, said Tuesday a decision on the matter is expected this week.
“A ruling is not expected to come down today, but probably this week,” court officials said in a news release.
Two of the judges on the 9th Circuit panel that will hear arguments were appointed by Democratic presidents, Jimmy Carter and Barack Obama, and one was appointed by a Republican, George W. Bush.
The panel probably will vote in favor of upholding the halt of Trump’s travel ban, said Margo Schlanger, a law professor at the University of Michigan who was the head of civil rights at the Department of Homeland Security under Obama.
“It’s possible they could have separate opinions, but I think unlikely. I would expect either a unanimous opinion or a majority and a dissent,” Schlanger said. “The issue is not the whole case, but just what should happen while the whole case is pending.”
These are the attorneys fighting for and against Trump’s travel ban
The U.S. 9th Circuit Court of Appeals has released the names of the attorneys who will argue for and against President Trump’s travel ban Tuesday.
Noah G. Purcell, the Washington state solicitor general, will represent the states of Washington and Minnesota. Those states filed the lawsuit that resulted in a federal district judge’s decision in Seattle on Friday to halt Trump’s executive order nationwide.
Washington State Atty. Gen. Bob Ferguson said it was Purcell’s idea to enlist major tech companies in the state to file briefs supporting the state’s challenge of Trump’s executive order.
Purcell was a Supreme Court clerk for now-retired Justice David H. Souter.
August E. Flentje, a career trial attorney in the Department of Justice’s civil division, will represent the Trump administration.
In his 19 years in the department, nearly all in the civil division, Flentje has worked under every president since Bill Clinton. He was part of a team that received an an award from former Atty. Gen. Eric H. Holder Jr. in 2013 for “extraordinary work” in the legal maneuvering around the Obama administration’s decision to support same-sex marriage in defiance of the Defense of Marriage Act passed by Congress.
In a 100-plus-page legal brief to the appeals court, the White House was first represented by Acting Solicitor General Noel Francisco and Acting Associate Atty. Gen. Chad Readler. They removed their names from the most recent court briefing after their former employer, legal firm Jones Day, filed an amicus brief regarding the travel ban.
Each side was to be allotted 30 minutes to present oral arguments, including time for questions from the judges.
Which constitutional issues might come up in today’s argument
Though these issues won’t be settled at today’s argument, the dispute over Trump’s travel ban touches on three constitutional principles.
Due process: Did the Trump administration give enough notice to visa holders of the change in rules? Is such notice even required for noncitizens?
Equal protection: Does the travel ban illegally target individuals based on national origin?
Establishment clause: Does Trump’s action unfairly give preference to Christians or discriminate against Muslims, violating the constitutional ban on the government establishing a religion?