The Ninth U.S. Circuit Court of Appeals
in San Francisco moved to deny today the Justice Department's request for an immediate reinstatement of President Trump's ban on temporarily banning certain travelers from seven designated countries and all refugees. Acting Solicitor General Noel Francisco appealed a temporary restraining order that put a stop to the ban nationwide, arguing that a federal judge in Seattle was effectively "second-guessing" the president on a matter of national security.
The denial by the appeals court means that the legal wrangling over the ban will go on. The appeals court in San Francisco has asked challengers of the ban to respond by February 6 and for Justice Department to file a counter-response later in the day.
Representing the Trump administration, Francisco told the appeals court that only the president has the power to decide who can enter or remain within the United States. His assertion points to a possibly even bigger legal battle over illegal immigration that is to come. "The power to expel or exclude aliens is a fundamental sovereign attribute, delegated by Congress to the executive branch of government and largely immune from judicial control," according to the administration’s filing.
"The injunction immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment," lawyers wrote in the brief. "The injunction contravenes the constitutional separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nation’s elected representative responsible for immigration matters and foreign affairs; and second-guesses the President’s national security judgment about the quantum of risk posed by the admission of certain classes of aliens and the best means of minimizing that risk," it said.
In compliance with the restraining order issued by U.S. District Judge James Robart, a George W. Bush appointee, the government has suspended the ban's enforcement for now. Robart’s ruling was one of several rulings issued by judges in some 50 lawsuits filed against the government, and represents a setback for the Trump administration.
In response to the February 3 restraining order, Trump wrote about Robart on Twitter, calling him a "so-called judge" whose "ridiculous" ruling "will be overturned." Trump tweeted, "Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision."
Trump has repeatedly said that his aim is to secure the nation’s borders and guarantee national security. The brief filed with the San Francisco appeals court asserts that presidential authority may not be questioned on issues of national security. The brief argued that Congress "vests complete discretion in the President" to impose conditions on alien entry, so Trump isn't legally required to justify such decisions, it said. His executive order said the ban was necessary for "protecting against terrorism," and that "is sufficient to end the matter."
The Justice Department asked that Robart's order be held until the resolution of the appeal is achieved so as to "ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism."
There have been multiple protests in cities across the country since the announcement of the executive orders. This weekend, there were protests near Trump’s Mar al Lago estate in Florida, where Trump attended an American Red Cross fundraiser. On the evening of February 4, Trump told reporters, "We'll win. For the safety of the country, we'll win."
While as many as 60,000 foreigners from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen had their visas canceled after Robart issued his ruling, the State Department has reversed its course and now says that persons with valid visas may travel to the US. The State Department is also telling refugee aid organizations that refugees who were cleared to travel to the US before the ban went into effect may now be permitted entry if they possess a valid entry visa.
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