Appeals Court Upholds Federal Judge’s Halt of Trump’s Vetting Executive Order

A three-judge panel of the 9th Circuit Court of Appeals Thursday afternoon not surprisingly issued a “per curiam” ruling — meaning a unanimous decision — denying the Trump Administration’s emergency motion for a stay pending appeal of the February 3 temporary restraining order issued by Republican Western District of Washington US District Court Judge James Robart of Trump’s Executive Order temporarily suspending classes of aliens from entering the US until adequate vetting processes could be implemented for refugees and others from 7 countries identified by the Obama administration and Congress as hotbeds of Islamist terrorism.

In its ruling Thursday afternoon, the 9th Circuit Court of Appeals stated, “At issue in this emergency proceeding is Executive Order 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States, which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries. Two States challenged the Executive Order as unconstitutional and violative of federal law, and a federal district court preliminarily ruled in their favor and temporarily enjoined enforcement of the Executive Order. The government now moves for an emergency stay of the district court’s temporary restraining order while its appeal of that order proceeds.”

“To rule on the government’s motion,” the appeals court said, “we must consider several factors, including whether the government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”

The appeals court also concluded that, "in evaluating the need for a stay, we must consider the public interest generally. See Nken, 556 U.S. at 434. Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay."

Trump’s Executive Order suspended entry for 90 days from the date of the order of immigrants and nonimmigrants of aliens from countries designated pursuant to Division 0, Title II, Section 203 of the 2016 consolidated Appropriations Act (HR 2029, PL 114-113), passed by Congress under President Obama, because they “would be detrimental to the interests of the United States.”

Saying the order is "a Muslim ban is inaccurate," South Carolina Republican Rep. Jeff Duncan stressed, "I have seen more distortion, hyperbole and outright lies about President Trump’s national security executive order from Democrats and the media … than I have seen on about any other issue since I came to Congress."

Under Title 8, Section 1182 of the US Code, the president has authority to use a proclamation to suspend the entry of “any aliens or of any class of aliens into the United States [who] would be detrimental to the interests of the United States,” for however long he deems necessary. This provision was included in the Immigration and Nationality Act (INA) of 1952.

Following Robart’s ruling, the Trump administration filed an appeal with the 9th Circuit Court of Appeals, which heard oral arguments Tuesday.

Dozens of companies and special interest groups have filed amicus motions and briefs backing and opposing the administration’s appeal, which can be found here.

Following Robart’s ruling, the Department of Homeland Security (DHS) said "the Department of Justice intends to file an emergency stay of [Robart’s] order and defend the President’s Executive Order, which is lawful and appropriate. The order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.”

The Trump Justice Department did just that by quickly appealing Robart’s decision, saying his nationwide temporary restraining order was a broad overreach of judicial authority, pointing out that the, “Immigration and Nationality Act of 1952 (INA), 8 U.S.C. §§ 1101 et seq., as amended, Congress established the framework for deciding which aliens may enter and remain in the United States. Congress expressly granted the President broad discretionary authority, whenever he ‘finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,’ to ‘suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate …’ 8 U.S.C. § 1182(f).”

“Numerous Presidents have invoked this authority,” the Justice Department noted.

“In addition to that statutory authority, the President has expansive constitutional authority under Article II over foreign affairs, national security, and immigration. ‘The exclusion of aliens is a fundamental act of sovereignty … inherent in the executive power to control the foreign affairs of the nation.’ Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).”

The Justice Department also said Robart’s ruling "second-guesses the President’s national security judgment,” pointing to a 1982 Supreme Court ruling that "the power to admit or exclude aliens is a sovereign prerogative."

In its appeal to the 9th Federal Circuit Court of Appeals, the Justice Department further stated, “The injunction contravenes the constitutional separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nation’s electedrepresentative responsible for immigration matters and foreign affairs; and second-guesses the President’s national security judgment about the quantum of risk posed by the admission of certain classes of aliens and the best means of minimizing that risk,” adding, "Judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”

Continuing, the Justice Department sated, “The district court’s sweeping injunction should be stayed pending appeal. It conflicts with the basic principle that ‘an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.’” Landon v. lasencia, 459 U.S. 21, 32 (1982). It also contravenes the considered judgment of Congress that the President should have the unreviewable authority to suspend the admission of any class of aliens. The district court did not confront those authorities; indeed, it gave no explanation why the State of Washington has a high likelihood of success on the merits of its claims. And it entered the injunction at the behest of a party that is not itself subject to the Executive Order; lacks Article III standing or any right to challenge the denial of entry or visas to third-party aliens; and brings a disfavored facial challenge. The injunction is also vastly overbroad—it is untethered to Washington’s particular claims; extends even to aliens abroad who currently have no visas; and applies nationwide, effectively overriding the judgment of another district court that sustained the Executive Order against parallel challenges.”

“The balance of harms weighs strongly in favor of a stay, as well as an immediate administrative stay pending consideration of the request for a full stay pending appeal,” the Justice Department said, noting, “The injunction immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment. As the President acted well within both statutory and constitutional authorization, the relief irreparably harms our system of government by contravening the Constitution’s separation of powers. The State, by comparison, has identified only speculative harms it would suffer from temporary suspension of the entry of aliens affected by the Order, and that harm could be minimized by expediting appeal.”

Continuing, the Justice Department stated, "Courts are particularly ill-equipped to second-guess the President’s prospective judgment about future risks, as decisions about how best to ‘confront evolving threats’ are ‘an area where information can be difficult to obtain and the impact of certain conduct difficult to assess.’ Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010). Unlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process. See, e.g., Al Haramain Islamic Found., Inc. v. Dep’t of Treasury, 686 F.3d 965, 980 (9th Cir. 2012).”

The Justice Department added, “Washington [state] nevertheless argued that the district court should disregard the President’s stated rationale for issuing the Executive Order because Washington believed it was prompted by religious animus toward Islam. That argument is wrong, and it cannot be reconciled with Kleindienst v. Mandel, 408 US. 753, 770 (1972), which held that, ‘when the Executive exercises’ immigration authority ‘on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion[.]’ Cf. Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (noting that Mandel’s ‘reasoning has particular force in the area of national security’).”

"The president’s order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people," a White House statement said.

Only hours after the Justice Department filed its emergency motion to stay the order by Robart with the 9th Circuit Court of Appeals, the court early Sunday denied the Justice Department’s request to immediately reinstate Trump’s order and ordered challengers of the Executive Order to respond to the appeal.

Washington, DC attorney and law professor Victor Williams issued a harsh condemnation of Robart’s suspension of Trump’s travel ban, saying, "Robart pulled a dangerous political stunt."

With three law degrees from the University of California, Hastings College of the Law, Columbia University and George Mason University, Williams worked as a federal judicial extern for US Court of Appeals Judge Gerald B. Tjoflat of the 11t Circuit and US Court of Appeals Judge Joseph Sneed of the 9th Circuit, he said in his statement, "There was no legal basis for Robart’s ruling,” he said in his statement. “Donald Trump is absolutely right that the travel ban will be eventually upheld. Indeed, Trump’s Acting Solicitor General Noel Francisco, who is a brilliant and experienced appellate advocate, will shred the trial judge’s TRO decision."

Williams said, "Robart knew that the 9th Circuit would not likely review his ruling before Monday afternoon or Tuesday. By refusing to grant a stay pending the government’s appeal, Robart purposely opened a 72-hour window to allow mass alien entry from the 7 terrorist-breeding nations. It now may take weeks to close that window."

Meanwhile, Lynn Tramonte, Deputy Director of America’s Voice Education Fund, issued a statement saying, “Make no mistake. Trump is building up his vaunted Deportation Force, and sending agents out after anyone they can find – including contributing members of society with families, homes, jobs, and productive lives here. There are no actual priorities when it comes to Trump’s immigration scheme: everyone is a target.”

“Amidst the chaos and deliberate distractions of the Trump White House, real danger lurks just below the surface for anyone paying attention,” Tramonte continued, adding, “ Nowhere is this more true than the immigration order, where almost every undocumented immigrant is subject to mass deportation. While the Trump Administration claims to want to focus on ‘criminals,’ they have laid out a blueprint for mass deportation. Don’t be fooled – their deportation priorities add up to just about everyone.”

American Constitution Society President Caroline Fredrickson also chimed in, lambasting Trump’s verbal attack on Robart.

“President Trump’s attack on a federal judge is inexcusable,” Fredrickson said. “Sadly, we have seen a pattern of total disregard for the Constitution and the rule of law in the president’s behavior. While on the campaign trail, then-candidate Trump blasted a federal judge for his ethnic heritage, saying he was incapable of ruling fairly because he was Mexican-American. Now, he has attacked another federal judge for refusing to bow to political pressure, this after firing the acting Attorney General for the same thing when she refused to defend his discriminatory Muslim ban. We have separation of powers in this country, guaranteed by the Constitution. It is clear President Trump thinks he is above the law. This puts us in very dangerous territory.”

Trump had tweeted, "When a country is no longer able to say who can, and who cannot, come in & out, especially for reasons of safety & security – big trouble!"

He later tweeted, "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!"

In a new video, Brookings Institution Senior Fellow Ben Wittes takes issue with Trump having not consulted with the Intelligence Community when drafting his Executive Order, as well as the content of the order itself. Wittes said the process used to create the order was "incompetent" and that the "travel ban" doesn’t make us any safer.

Proponents of Trump’s Executive Order have countered by saying Robart’s now upheld order doesmake the US safer by temporarily suspending travel from jihadi hotbeds until a thorough vetting process can be put in place, adding it’s not a “ban” on Muslims but, rather, as the order makes clear DHS said, it “ensure[s] that the US government can conduct a thorough analysis of the national security risks faced by our immigration system … the Executive Order imposes a 90-day pause on the entry into the United States of nationals from Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen. This pause does not apply to Lawful Permanent Residents, dual citizens with passports from a country other than the seven listed or those traveling on diplomatic, NATO or UN visas. Special Immigrant Visa holders who are nationals of these seven countries may board US-bound planes and apply for and receive a national interest exception to the pause upon arrival.”

[Correction: In the original report, it was erroneously reported that the 9th Circuit Court of Appeals ruling was Friday. It was handed down Thursday]

Also read Homeland Security Today report, IN-DEPTH: Inside Trump’s ‘Extreme Vetting,’ Temporary Halt on Immigrants from Jihadi Hotbeds; ‘Not a Muslim Ban,’ Officials Stress, and, Trump’s EO Protecting Nation from Foreign Terrorist Entry into US Clarified by DHS; Justified CT Officials Say.

The Government Technology & Services Coalition's Homeland Security Today (HSToday) is the premier news and information resource for the homeland security community, dedicated to elevating the discussions and insights that can support a safe and secure nation. A non-profit magazine and media platform, HSToday provides readers with the whole story, placing facts and comments in context to inform debate and drive realistic solutions to some of the nation’s most vexing security challenges.

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