February 07, 2017
All eyes will be on a three-judge panel Tuesday evening as top Justice Department lawyers deliver oral arguments on President Trump’s immigration ban, hoping to reverse a ruling that has thwarted implementation of the president’s executive order on travel and refugees.
The State of Washington v. Donald Trump will be decided by the U.S. 9th Circuit Court of Appeals, which denied the administration’s request last weekend for an immediate stay against a restraining order issued by Seattle-based Judge James Robart, who was nominated to the federal district bench by President George W. Bush. The judges presiding over the appeal are William Canby Jr., a Carter appointee; Michelle Friedland, an Obama appointee; and Richard Clifton, also appointed by Bush.
Robart’s ruling was one of several legal actions taken against Trump’s immigration directive, which seeks to halt immigration from seven majority-Muslim countries and temporarily suspend admittance of refugees into the United States. Those who have filed amicus briefs against the immigration ban have made the following key arguments:
- It flouts constitutional values of due process and equal protection: Because the Supreme Court has said that constitutional rights like due process and equal protection apply to all immigrants or non-citizens who are physically in the United States (Zadvydas v. Davis, 2001), opponents of the ban believe it unlawfully deprives individuals, who arrived in the country with valid visas or refugee status before Trump’s ban took effect, of their constitutional protections.
- It is explicitly anti-Muslim and therefore violates the First Amendment’s Establishment Clause: The Establishment Clause prohibits the government from favoring any one religious denomination over another. The ACLU, Judge Robart and countless humanitarian groups have cited comments made by Trump during the election – in addition to the language of his executive order (“keep radical Islamic terrorists out of the United State of America”) – to suggest that his intent is to target Islam.
- It makes Americans less safe: A bipartisan group of former U.S. diplomats and high-ranking national security officials submitted a brief to the 9th Circuit on Monday in which they argued that the ban “could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships.” At least four of the signatories told the court they were “current on active intelligence regarding all credible terrorist threat streams directed against the U.S.,” meaning they have had access to the same, or similar amounts of classified information as the president.
Justice Department lawyers deconstructed those arguments in an emergency brief filed Saturday and can be expected to further explain their objections when a seasoned agency attorney defends Trump’s order before the three-judge panel on Tuesday. Here is how the administration has responded so far:
- Presidents are granted sweeping authority on immigration-related matters: A six-decades-old statute known as the Immigration and Nationality Act allows the president to “by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,” whenever he or she finds that the acceptance of any individuals or class of individuals into the U.S. could jeopardize national security. Before Trump, President Carter used the same law to block Iranians from entering the U.S. in 1980, Reagan invoked it when barring Cuban government officials from entry in 1985, and Obama cited it in 2011 while announcing that he had suspended the admittance of foreigners “who participate in serious human rights and humanitarian law violations and other abuses.”
- Foreign nationals outside the U.S. are not protected by the Constitution: Most individuals who would be affected by Trump’s order are aliens located outside of the United States who have “no constitutional right of entry to this country as a non-immigrant or otherwise,” the Justice Department noted in its brief. Moreover, such individuals do not have constitutional rights to violate, which fits into the administration’s argument against claims that the ban is discriminatory and illegally circumvents fundamental guarantees of due process, religious freedom, and equal protection.
- The purpose of the ban is to enhance security not to advance anti-Muslim bigotry: The Justice Department, in its brief on Monday, argued that it is inappropriate for Robart or any other U.S. district judge to issue a ruling based on what they perceive the president’s motives to be. “Here, as another district court has recognized, the executive order undeniably states a facially legitimate and bona fide reason — ensuring the ‘proper review and maximum utilization of available resources for the screening of foreign nationals’ and ‘that adequate standards are established to prevent infiltration by foreign terrorists'” from Iran, Iraq, Somalia, Sudan, Libya, Yemen and Syria, the brief explained. The administration simultaneously noted that nowhere in the president’s directive is the rationale behind the order characterized as “religious animus toward Islam.”
“There is no question that the president respects the judicial branch and its ruling, but I just read off the U.S. code on that (Immigration and Nationality Act) and I don’t think there’s any other way that you can interpret that than that the president has the discretion to do what is necessary to keep this country safe,” White House press secretary Sean Spicer told reporters ahead of the hearing on Tuesday.
Oral arguments before the 9th Circuit are set to begin at 6 p.m. ET and the court has signaled it hopes to move swiftly to uphold or reverse the restraining order against the ban.
If the administration loses, their likely next step would be to appeal to the Supreme Court. However, the current vacancy on the bench, and the uncertain status of when it might be filled means Trump could face a split ruling on his executive order if the high court ends up hearing it.
“We look forward to a final decision on the merits of this soon,” Spicer said.