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| Baraah Alawdi, originally from Yemen, poses for photos next to an unidentified artist's mannequin placed outside of the 9th U.S. Circuit Court of Appeals in San Francisco, Tuesday, Feb. 7, 2017. President Donald Trump's travel ban faced its biggest legal test yet Tuesday as a panel of federal judges prepared to hear arguments from the administration and its opponents about two fundamentally divergent views of the executive branch and the court system. |
SAN FRANCISCO
(AP) -- President Donald Trump's travel ban faced its biggest
legal test yet Tuesday as a panel of federal judges prepared to hear
arguments from the administration and its opponents about two
fundamentally divergent views of the executive branch and the court
system.
The government will ask a federal
appeals court to restore Trump's executive order, contending that the
president alone has the power to decide who can enter or stay in the
United States. But several states have challenged the ban on travelers
from seven predominantly Muslim nations and insisted that it is
unconstitutional.
Tuesday's hearing was to
unfold before a randomly selected panel of judges from the San
Francisco-based 9th U.S. Circuit Court of Appeals. It was unlikely the
court would issue a ruling Tuesday, with a decision expected later this
week, court spokesman David Madden said.
Whatever the court eventually decides, either side could ask the Supreme Court to intervene.
U.S.
District Judge James Robart in Seattle, who on Friday temporarily
blocked Trump's order, has said a judge's job is to ensure that an
action taken by the government "comports with our country's laws."
Trump
said Tuesday that he can't believe his administration has to fight in
the courts to uphold his refugee and immigration ban, a policy he says
will protect the country.
"And a lot of people
agree with us, believe me," Trump said at a roundtable discussion with
members of the National Sheriff's Association. "If those people ever
protested, you'd see a real protest. But they want to see our borders
secure and our country secure."
The same day,
Homeland Security Secretary John Kelly told lawmakers that the order
likely should have been delayed at least long enough to brief Congress
about it.
The Justice Department filed a new
defense of the ban Monday. Lawyers said it was a "lawful exercise" of
the president's authority to protect national security and said Robart's
order should be overruled.
The filing with
the appeals court was the latest salvo in a high-stakes legal fight
surrounding Trump's order, which temporarily suspends the country's
refugee program and immigration from seven countries with terrorism
concerns.
Washington state, Minnesota and
other states say the appellate court should allow a temporary
restraining order blocking the travel ban to stand as their lawsuit
moves through the legal system.
The panel hearing the arguments includes two Democrat-appointed judges and one Republican appointee.
The
appeals court over the weekend refused to immediately reinstate the
ban, and lawyers for Washington
and Minnesota argued anew on Monday that
any resumption would "unleash chaos again," separating families and
stranding university students.
The Justice
Department responded that the president has clear authority to "suspend
the entry of any class of aliens" to the U.S. in the name of national
security. It said the travel ban was intended "to permit an orderly
review and revision of screening procedures to ensure that adequate
standards are in place to protect against terrorist attacks."
The
challengers of the ban were asking "courts to take the extraordinary
step of second-guessing a formal national security judgment made by the
president himself," the Justice Department wrote.
It's
possible that the panel could make a ruling on a technical point,
rather than the larger merits of the case. Under 9th Circuit case law,
temporary restraining orders cannot be appealed, a point noted by the
states.
An analysis on that point would
include examining whether the lower court's order is properly classified
as a temporary restraining order rather than as another type of order, a
preliminary injunction, noted Arthur Hellman, a federal courts scholar
at University of Pittsburgh Law School.
If the
case does end up before the Supreme Court, it could prove difficult to
find the necessary five votes to undo a lower court order. The Supreme
Court has been at less than full strength since Justice Antonin Scalia's
death a year ago. The last immigration case that reached the justices
ended in a 4-4 tie.
How and when a case might
get to the Supreme Court is unclear. The travel ban itself is to expire
in 90 days, meaning it could run its course before a higher court takes
up the issue. Or the administration could change it in any number of
ways that would keep the issue alive.
After
Robart's ruling, the State Department quickly said people from the seven
countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - with
valid visas could travel to the U.S.
A
graduate student who had traveled to Libya with her 1-year-old son to
visit her sick mother and attend her father's funeral was back in Fort
Collins, Colorado, on Monday after having been stopped in Jordan on her
return trip. She was welcomed with flowers and balloons by her husband
and other children.
Syrian immigrant Mathyo
Asali said he thought his life was "ruined" when he landed at
Philadelphia International Airport on Jan. 28 only to be denied entry to
the United States. Asali, who returned to Damascus, said he figured
he'd be inducted into the Syrian military. He was back on U.S. soil
Monday.
"It's really nice to know that there's
a lot of people supporting us," Asali told Gov. Tom Wolf, who greeted
the family at a relative's house in Allentown.
States
challenging the ban have been joined by technology companies, who have
said it makes it more difficult to recruit employees. National security
officials under President Barack Obama have also come out against it.
