President Trump’s temporary travel ban faces a federal appeals court hearing Tuesday that will decide whether it can be reinstated or remain on hold.
The 9th U.S. Circuit Court of Appeals in San Francisco announced late Monday that it will hold a hearing at 6 p.m. ET Tuesday on Trump’s Jan. 27 order, which suspends the U.S. refugee program for 120 days and bans travel from seven majority-Muslim countries for at least 90 days.
Each side will have 30 minutes to make its case. Whatever the court decides, the legal battle will be far from over in a case that could end up being decided by the Supreme Court.
The appeals court is only deciding whether to uphold a temporary restraining order issued by a Seattle judge, while a separate series of court hearings will decide later whether Trump’s order is legal.
Trump’s order remains on hold three days after U.S. District Judge James Robart in Seattle ordered the departments of State and Homeland Security to stop enforcing the ban. That prompted a weekend rush from foreigners who held valid visas to fly into the U.S. The U.S. government estimates 60,000 to 100,000 visas were canceled while the ban was in effect.
The 9th Circuit appeals court is considered the nation’s most liberal, with 18 judges named by Democratic presidents and only seven by Republicans. The specific panel hearing the case Tuesday consists of judges named by Presidents Barack Obama, George W. Bush and Jimmy Carter.
Lawyers for Washington State and Minnesota argued in court papers Monday that restoring Trump’s travel ban would “unleash chaos” by stranding students, splitting families, disrupting the economy and interrupting travel.
“We view the order as one that ultimately undermines the national security of the United States, rather than making us safer,” said a brief co-authored by former Democratic secretaries of State Madeleine Albright and John Kerry, along with eight former intelligence and homeland security officials. “It is our professional opinion, this Order cannot be justified on national security or foreign policy grounds.”
Trump had ordered the temporary ban on all refugees and citizens of Iraq, Iran, Sudan, Libya, Somalia and Yemen, and imposed an indefinite ban for Syrians citing national security grounds. He said his goal was to improve background checks to make sure terrorists are not admitted inadvertently.
Apple, Google, Microsoft and Facebook signed a joint brief in opposition to the ban that lauded the drive and creativity of immigrants. It said protecting the nation through increased background checks was important, but maintaining America’s fundamental commitment to welcoming immigrants was also critical.
“The experience and energy of people who come to our country to seek a better life for themselves and their children — to pursue the ‘American Dream’ — are woven throughout the social, political, and economic fabric of the Nation,” it said.
The Justice Department accused Judge Robart of “judicial second-guessing of the president” that constitutes an “impermissible intrusion” into Trump’s authority over who can enter the country.
In a brief filed Monday evening, Justice Department attorneys said most of those affected by the ban have never even entered the United States before. It quoted a 1982 Supreme Court decision stating that a first-time visitor “requests a privilege and has no constitutional rights.”
The department brief said the limits on presidential authority sought by the states “would mean that the president would be statutorily disabled from barring the entry of nationals of a country with which the United States was at war — a result that would raised serious constitutional questions.”
Trump weighed in throughout the weekend, saying the U.S. would still screen foreigners “VERY CAREFULLY” and calling Robart a “so-called judge” who put U.S. lives at risk by halting his immigration ban. “If something happens blame him and court system,” Trump tweeted. “People pouring in. Bad!”
His personal attack on Robart drew condemnation from both Republicans and Democrats in Congress.
“It is best not to single out judges,” Senate Republican leader Mitch McConnell said Sunday on News Channels. “We all get disappointed from time to time. I think it is best to avoid criticizing them individually.”
Trump noted in signing the order that persecuted Christians overseas who apply for asylum should be given preference, but the White House said the order was not a “Muslim ban,” and that the countries selected are terrorism-prone.
The order, which went into immediate effect, sparked anger and confusion across the nation. Dozens of incoming travelers were held up at U.S. airports, and many more were halted from boarding flights bound for the United States. Protests erupted at airports and city halls nationwide.