Updated Feb. 9, 2017; 11:36 p.m. EST
San Francisco's Ninth Circuit Court has denied a Department
of Justice emergency motion to stay a Seattle federal district court's ruling
that suspended enforcement of critical components of President Donald Trump's
executive order "Protecting the Nation From Foreign Terrorist Entry Into
the United States." The order banned for 90 days entry into the United
States for citizens of Iraq, Iran, Libya, Somalia, Sudan and Syria. It
suspended for 120 days the entry of all refugees and indefinitely suspended
immigration of Syrian refugees. The denial set the stage for the first Supreme Court review of the new administration's policies, which could happen as early as next week.
The Department of Justice contended in circuit court documents filed
Monday that the court system lacked authority to restrict enforcement of the
Executive Order because the President has "unreviewable authority to
suspend the admission of any class of aliens," particularly when national security matters are at stake. Circuit court judges asserted
their authority to check executive overreach, writing in their decision
"there is no precedent to support this claimed unreviewability, which runs
contrary to the fundamental structure of our constitutional democracy."
The Ninth Circuit Court established standing for the suit largely
based on harm to public universities, which are considered branches of the
state. The court cited the teaching and research missions that are harmed by the
executive order's travel restrictions on faculty and students who are nationals
of the seven predominantly Muslim countries. The faculty and students "cannot travel
for research, academic collaboration or for personal reasons and their families
abroad cannot visit. Some have been stranded outside the country, unable to
return to the universities at all," the judges wrote.
The original complaint filed by the states of Washington and Minnesota cited both religious discrimination
and violation of due process rights afforded by the fifth amendment in its case
against the executive order. The plaintiffs pointed to Trump's stated
intent throughout his presidential campaign to institute a "Muslim
ban." While the DOJ questioned the court's leeway to consider other motivations
behind a national security order, the judges wrote that the states' complaint
"raise serious allegations and present significant constitutional
questions" in terms of discrimination.
The court also rejected the DOJ's assertion that individuals
affected by the executive order have no rights under the U.S. Constitution. Citing
case law from 2001 they wrote that due process protections provided by the fifth
amendment "appl[y] to all 'persons' within the United States, including
aliens regardless of whether their presence here is lawful, unlawful,
temporary, or permanent."
Regarding clarifications by White House counsel made several
days after the order was implemented that permanent residents were excluded
from the restrictions, the court questioned the authority of White House
counsel to make and enforce those interpretations. Moreover, given the evolving
interpretation of the order, the court pointed out that it "cannot say
that the current interpretation by the White House counsel, even if
authoritative and binding, will persist past the immediate stage of these
proceedings."
The court admonished the Department of Justice for
submitting no evidence to support their claim that the stay on the travel ban
could result in irreparable harm to the United States since the district
court's order returned the nation temporarily to the position it has occupied before
the ban. The court noted that the DOJ gave no evidence that any alien from any
of the countries named in the order has perpetrated a terrorist attack in the United
States. If that information were classified, the court pointed out, the government is free to provide the court with classified information under seal and with an
expectation of confidentiality. The Department of Justice did not provide such
information in this case.
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Updated Feb. 9, 2017; 12:32 p.m. EST
San Francisco's Ninth Circuit Court has yet to deliver a decision on whether to uphold a Seattle federal district court's ruling to suspend critical components of President Donald Trump's executive order that temporarily banned travelers and refugees from seven mostly-Muslim nations from entering the U.S., even with valid entry documents. The states of Washington and Minnesota filed the lawsuit against the executive order, claiming unconstitutionality and harm to state economies and business. The Department of Justice has defended the order.
While the Ninth Circuit Court voiced criticism of the executive order, it did not immediately rule on the case. A decision on whether to uphold the lower court's decision or overturn it is widely expected this week. A Ninth Circuit Court official told the Los Angeles Times that the court would issue advance notice of 60 to 90 minutes when a
decision is imminent.
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Updated Feb. 6, 2017; 10:13p.m. EST
The United States Department of Justice filed a supporting brief
with San Francisco's Ninth Circuit Court on Monday afternoon to bolster arguments for
halting the suspension of President Trump's travel ban on the grounds of
judicial overreach by James Robart of Seattle's federal district court. It's central argument called into question the right of the court to "take the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority." The states of Washington and Minnesota had filed a supporting brief early Monday morning, saying "the courts have both the right and the duty to examine the defendant's true motives."
In the meantime, former U.S. secretaries of state John Kerry under
the Obama Administration and Madeleine Albright under the Clinton
Administration as well as Susan E. Rice, national security advisor under Obama and Leon E. Panetta, who served as secretary of defense and head of the C.I.A.
filed a declaration of support on Monday for the states of Washington and
Minnesota, arguing that the executive order will "endanger U.S.
troops" and "likely feed the recruitment narrative of ISIL and other
extremists" due to its focus on Muslim-majority nations. Fifteen states and the District of Columbia have also issued
a declaration of support for the plaintiffs.
Nearly 100 corporations, including Apple, Facebook, Microsoft and Netflix, signed a "friend-of-the-court" filing that claims the executive
order harms American business. "The Order effects a sudden shift in
the rules governing entry into the United States, and is inflicting substantial
harm on U.S. companies," the companies jointly stated in the document.
The Ninth Circuit Court will hear oral arguments in the case by telephone on Tuesday at 3 p.m. Pacific Standard Time. The arguments will be heard by Judge William C. Canby Jr., appointed by
President Jimmy Carter; Judge Michelle T. Friedland, appointed by
President Barack Obama; and Judge Richard R. Clifton, appointed by
President George W. Bush. The court will live stream the call on its website.
The case is expected to rise to the United States Supreme Court.
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Filed Feb. 6, 2017; 1:23 a.m. EST
A Federal District Court in Seattle ruled late Friday in favor of the states of Washington and Minnesota, which had jointly sued to place a temporary injunction on President Donald Trump’s Jan. 27 executive order that suspended for 90 days immigration
for citizens of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen traveling to the U.S., including those with valid travel visas, student visas and temporary work visas. The executive order had suspended immigration for refugees for 120 days and indefinitely suspended Syrian refugees. Unlike stays issued by other courts on specific parts
of the executive order, Judge James Robart's injunction suspended the order in its entirety and also reinstated the validity of an estimated 60,000 to 100,000 visas that the executive order had revoked.
In addition to constitutional objections to the travel ban, the states of Washington and Minnesota cited
undue economic harm to the states, due to hardships placed on major companies headquartered locally, including Amazon, Expedia and Microsoft. Companies filed legal declarations in support of the suit, claiming hardships that included prohibiting numerous employees with work
visas from traveling on business, given uncertainty around their ability to re-enter to the U.S. after an international business trip.
The Department of Justice filed an emergency motion with the Ninth Circuit Court of Appeals in San Francisco on Saturday requesting a stay on the Seattle District Court ruling, arguing that the court overstepped its authority in suspending a national
security order. The appellate court refused to make an immediate judgment, instead requesting both sides of the case to present more information. The states of Washington and Minnesota were to file the additional brief by midnight Sunday and the Justice Department was to follow by Monday 3 p.m.
Pacific Standard Time.
Travel Ban Lifted
By Saturday morning, the Department of Homeland Security had issued the following statement:
In accordance with the judge's ruling, DHS
has suspended any and all actions implementing the affected sections of the
Executive Order entitled, "Protecting the Nation from Foreign Terrorist
Entry into the United States." This includes actions to suspend passenger
system rules that flag travelers for operational action subject to the
Executive Order.
The International Air Transport Association sent a memo to its members on Saturday stating that “all travelers who were eligible to travel to the United States prior to [the executive order’s] issuance will now be permitted to travel to the United States in keeping with the law as it existed
pre-executive order."
Middle Eastern carriers Qatar Airways and Etihad Airways issued statements that they had received instructions from U.S. Customs and Border Protection that the executive order was suspended and that they would follow standard protocols that had been in place prior to Jan. 27 regarding citizens from the seven countries
identified in the executive order.
Track to the Supreme Court
Pending the decision of the historically liberal Ninth Circuit Court, the lawsuit over Trump’s travel ban may ultimately travel to the Supreme Court for an emergency ruling. A swift decision from the Ninth Circuit Court followed by an emergency appeal could
land the case on the steps of the Supreme Court by the end of the week. Once there, it would require four justices to accept the case for a decision. It would require five justices to overturn the lower court ruling. The current vacancy on the Supreme Court portends that the lower court ruling would likely
stand if the justices took the case. Alternatively, the Ninth Circuit could delay its decision-making, riding out the three-month travel ban for as long as it can.