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White House Press Secretary Sean Spicer says the Trump administration is not rethinking its strategy over the president’s ban on refugees and travelers from seven predominantly Muslim countries from entering the United States. (Feb. 6) AP
The legal battle over President Trump’s temporary travel ban targeting seven majority-Muslim countries likely will take weeks to resolve and could require the Supreme Court to make the final decision. But the arguments challenging and defending the executive order have become clear.
The Justice Department argues that a president has broad powers to act unilaterally on questions of immigration and national security. It says judges have only limited powers to second-guess such decisions and urges the court to allow Trump’s immigration order to go back into effect.
Opponents concede that a president has some power on his own, but they say Trump overstepped that by banning people from specific countries and of the Muslim religion. They contend he violated core principles of the Constitution and ignored laws passed by Congress.
Trump’s order, signed Jan. 27 at the Pentagon, instituted a 120-day ban on refugees entering the U.S. and a 90-day ban for most citizens of Libya, Iraq, Iran, Somalia, Sudan and Yemen. The order also indefinitely barred any Syrians from entering the U.S. He said his goal was to improve background checks to make sure terrorists are not admitted inadvertently.
The order was blocked by U.S. District Judge James Robart in Seattle on Friday while the challenge plays out in court. The government appealed to the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, seeking to reinstate the ban while the case progresses. A three-judge panel of that court will hear arguments by telephone Tuesday afternoon and could rule shortly thereafter. Then the Supreme Court could get involved.
The Justice Department’s pitch, first made early Sunday morning at the district court level in Washington state and amplified late Monday to the appeals court, is that Trump has both constitutional and legal authority in matters of national security dating back at least to 1952.
“The state asks the 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,” it argues in its latest brief.
Justice Department lawyers say most of those affected by the ban have never entered the United States before. Such a person, they say, “requests a privilege and has no constitutional rights” under a 1982 Supreme Court ruling. If anyone should get relief from Trump’s order, the brief says, it should be “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”
The government relies on the Immigration and Nationality Act of 1952, which gave the president the power to suspend or impose restrictions on the entry of foreign nationals if he determines their entry “would be detrimental to the interests of the United States.”
To back up the claim, its district court brief lists eight instances dating back to President Ronald Reagan in 1986 when presidents blocked residents of certain nations — such as Cuba, Libya, Russia, Somalia and Yemen — from being granted admission to the U.S.
Beyond the constitutional and legal arguments, the administration also maintains that states such as Washington and Minnesota lack standing to bring their challenge because — unlike would-be immigrants and refugees — they are not subject to the travel ban.
Having claimed presidential authority and questioned the states’ arguments, government lawyers also criticize Robart’s ruling as “vastly overbroad” because it applies nationwide, even though a federal judge in Massachusetts upheld the executive order in a separate, more limited case.
Ban opponents’ argument
The challenge to Trump’s order is being led by the attorneys general from Washington state and Minnesota, with help from arguments filed by a broad ranges of groups, including 16 other states and the District of Columbia, two former secretaries of State, three former CIA directors, 97 tech companies and 284 law professors.
In a joint filing, the attorneys general concede that the 1952 law does give broad powers to a president to enforce immigration laws in the U.S. But they say Trump’s executive order goes far beyond the legal limitations originally enshrined in the Constitution and later enacted by Congress.
They say the 1952 powers given to a president were limited by a 1965 law that prohibits discrimination against immigrants based on their country of origin. They say Trump’s national security arguments are undercut because no one from the countries listed in the travel ban have committed terrorist acts on U.S. soil.
“Though (the order) cites the attacks of September 11, 2001, as a rationale, it imposes no restrictions on people from the countries whose nationals carried out those attacks,” they say in court papers.
Even though the White House has repeatedly said the order does not constitute a “Muslim ban,” the attorneys general argue that his repeated call for such a ban on the campaign trail shows the true intent of his order.
That allegation is bolstered, they say, by the fact that Trump’s order includes a section giving immigration preference to people who practice a “minority religion” and fear “religious-based persecution” in their countries. The seven countries listed in Trump’s ban are 97% Muslim.
“The sham of a secular purpose is exposed both by the language of the order and defendants’ expressions of anti-Muslim intent,” they maintain.
And they argue that Trump’s order violates due process rights established under the Fifth Amendment. While the administration has said foreigners have few rights to force their way into the country, the attorneys general say longtime, legal residents of the U.S. — those who were detained at U.S. airports or stranded abroad by Trump’s order — have every right to do so.
“A temporary absence from the country does not deprive longtime residents of their right to due process,” they say.