Setting the stage for a legal fight that is expected to be decided by the U.S. Supreme Court, Justice Department attorneys on Monday denounced a federal judge’s suspension of President Donald Trump’s immigrant travel ban as “vastly overbroad” and argued that the president has the authority to make decisions affecting national security.
The argument, included in a 15-page filing with the 9th U.S. Circuit Court of Appeals, came as the San Francisco-based court scheduled oral arguments in the explosive dispute for Tuesday at 3 p.m.
A three-judge panel of the court said each side in the case would be given 30 minutes to make their case over whether Trump’s temporary ban on immigration from seven Muslim nations must be restored. The two sides will present their arguments over the phone. The hearing will be streamed live on the court website, www.ca9.uscourts.gov.
The government’s central argument is that Trump acted within his authority to make decisions regarding immigration and national security.
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“The Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees,” the Justice Department filing stated.
Trump’s order halted immigration from Syria, Iraq, Libya, Iran, Sudan, Yemen and Somalia for 90 days and stopped the arrival of refugees from all countries for 120 days so federal authorities could devise additional security screening procedures. Chaos and protests erupted in the immediate hours after the executive order was signed, and legal challenges have been filed in courts nationwide claiming that it singles out Muslim immigrants and violates the Constitution’s prohibition on favoring one religion over another.
The most wide-ranging order was issued Friday by a federal judge in Seattle who decreed a nationwide stay of the travel ban. The government appealed to the 9th Circuit to overturn the judge’s order, and since then an extraordinary coalition of high-tech companies, civil liberties groups, former security chiefs and refugee advocates have coalesced to say it should remain in place.
Xavier Becerra of California and 15 other attorneys general filed a “friend of the court” brief Monday denouncing the travel ban as harming the states’ universities by potentially blocking entry into the country of thousands of overseas scholars and others.
Speaking at a news conference from Fresno, Becerra called Trump’s order “unconstitutional and un-American,” arguing that it singles out people based on their faith, ethnicity or national origin.
Trump and his allies have argued the order does not discriminate against Muslims and that it is based on a broad geography in the Middle East that has bred terrorists that threaten the U.S. Becerra disputed that point, calling it a “breach” in logic and questioning why other Middle Eastern countries such as Saudi Arabia are not included.
“No one has pointed out to me where one of these countries has sent us someone who has committed a terrorist act, at least since 9/11,” Becerra said. “So for us to believe these specific Muslim countries must be prevented to have anyone depart their territory to come to the U.S. is a stretch, if we’re going to say they’re a danger.”
“The folks being detained, what identifies them all is the fact that they are Muslim,” he said.
Becerra joined with officials from New York, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and the District of Columbia in urging the 9th Circuit to deny the administration’s effort to restore the travel restrictions.
“The executive order has inflicted and continues to inflict harm on state colleges and universities around the country … which rely on faculty and students from across the world,” the brief states.
At the 10 University of California campuses, for instance, almost 500 graduate students and 40 undergraduates may be affected by the temporary ban on travel from seven Muslim majority nations if it is restored, the brief argues.
“California universities and colleges host the largest number of students from the seven targeted countries,” the brief states. “The overwhelming majority of them are from Iran, with 1,286 visas issued to students headed to California institutions in 2015.”
Trump has insisted in statements and on Twitter that his travel order will be upheld, and conservative groups, gun owners and border-control advocates have filed arguments supporting him.
One friend-of-the-court brief filed Monday by a coalition that includes Citizens United, the English First Foundation and Gun Owners of America argued that federal law gives the president the right “to suspend or restrict the entry into the United States of ‘any aliens or of any class of aliens’ that he determines would be ‘detrimental to the interests of the United States.’ ”
“This statute has been understood to give a president virtually unlimited power to suspend or restrict immigration within its framework,” the group argued.
There have been several legal challenges to the travel ban since the president signed his executive order on Jan. 27, but the most wide-ranging is the nationwide stay of the order that was issued Friday afternoon by U.S. District Judge James L. Robart in Seattle.
Robert kept his focus tight and his order narrow, but legal scholars say that it likely will lead to the U.S Supreme Court addressing the broader, existential issue of national security and how to measure it as a rationale for extraordinary executive action.
In cross-examining the lawyers last week, Robart asked one of the government’s lawyers to look back to the terrorist attacks of Sept. 11, 2001. The date stood as a prime exhibit for the suspension of immigration from the seven Muslim-majority countries, Robart surmised in a courtroom exchange with Justice Department attorney Michelle Bennett.
“And my question to you is, have there been terrorist attacks in the United States by refugees or other immigrants from the seven countries listed since 9/11?” the judge asked.
Bennett replied that the measure was written “to protect the United States from the potential for terrorism,” to which the judge responded, “How many arrests have there been of foreign nationals for those seven countries since 9/11?”
The attorney said she didn’t know. “Let me tell you,” Robart replied. “The answer to that is none, as best I can tell.”
The judge went on to say that part of his job required him “to look and determine if the Executive Order is rationally based.”
“And rationally based to me implies that to some extent I have to find it grounded in fact as opposed to fiction,” the judge said.
“Well, your honor, we actually don’t think you are supposed to look at whether it’s rationally based,” Bennett replied.
Bennett said the main consideration for the Trump administration is whether the order was a legitimate exercise of presidential power on its face. That question will no doubt be argued at length as the nationwide fight over the immigration suspension moves to the 9th Circuit on Tuesday.
Professor Rory Little of the UC Hastings Law School said that of the several judges around the country to issue rulings on the executive order, Robart pushed his out the furthest by declaring that, in order for his temporary restraining order to be applied uniformly, he was making it national in scope.
Robart had different cases with different plaintiffs that happened to be the states of Washington and Minnesota rather than individual immigrants seeking entry into the country.
“These are states that are able to allege a lot of different harms,” Little said. “Now you’ve got over 100 companies joining them with amicus briefs, saying their businesses are harmed. You can’t just solve it by saying this guy got in so now it’s moot. It’s kind of a more major attack on systemic effects rather than just a couple of individual cases.”
Little said it’s not unusual that U.S. District Judge Nathaniel Gorton in Boston found in favor of the Trump administration while Robart ruled against it.
“It’s a close case,” Little said. “It’s not an obvious case. The executive branch has a lot of power to restrain immigration for various reasons. Meanwhile, there is a fair argument that the the executive branch can’t do what it’s doing on the basis of the First Amendment, the 14th Amendment and the due-process clauses. Here you have merits that could go either way.”
Little said that most legal experts do not think the Trump administration can fare any better than a 4-4 vote on the eight-member U.S. Supreme Court, and that the final outcome could wind up even worse for the president.
“It’s guaranteed that Justices (John) Roberts and (Anthony) Kennedy are very unhappy with the attacks on the federal judiciary,” Little said, referring to the president’s Twitter post that characterized Robart as a “so-called judge.”
“Every time he tweets something, he frankly hurts his lawyers’ chances,” Little said.
Angela Hart of The Bee Capitol Bureau contributed to this report.