State and federal lawyers will argue before a panel of federal appellate court judges Tuesday in the pitched fight over President Donald Trump’s travel and refugee ban that could reach the Supreme Court.
The legal dispute involves two divergent views of the role of the executive branch and the court system.
The federal government maintains that the president alone has the power to decide who can enter or stay in the United States, while states suing President Trump say his executive order is unconstitutional.
Seattle District Judge James Robart, who on Friday temporarily blocked President 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.”
The Justice Department filed a new defense of President Trump’s ban on travelers from seven predominantly Muslim nations as a federal appeals court weighs whether to restore the administration’s executive order. The lawyers said Monday the travel ban was a “lawful exercise” of the president’s authority to protect national security and said Judge Robart’s order that put the policy on hold should be overruled.
The filing with the San Francisco-based 9th U.S. Circuit Court of Appeals was the latest salvo in a high-stakes legal fight surrounding President Trump’s order.
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 judges hearing the arguments — two Democrat-appointed judges and one Republican appointee — are from a randomly assigned panel.
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, which temporarily suspends the country’s refugee program and immigration from seven countries with terrorism concerns, 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 pursuant to broad grants of statutory authority,” the Justice Department wrote.
Whatever the appeals court decides, either side could ask the Supreme Court to intervene.
It could prove difficult, though, to find the necessary five votes at the High Court 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 — could travel to the U.S. if they had valid visas.