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Travel ban: White House files appeal against ruling as Trump says 'we'll win' / 'An epic confrontation': Trump travel ban takes US to brink of crisis
Travel ban: White House files appeal against ruling as Trump says 'we'll win'
As previously barred travellers prepare to fly back to the US, the DoJ says the Washington state ruling ‘second-guesses’ the president’s security judgment
Martin Farrer and agencies
Sunday 5 February 2017 06.47 GMT
The US justice department has filed an appeal against a judge’s order lifting Donald Trump’s controversial travel ban, as the new administration’s flagship immigration policy threatened to unravel after one week.
After the appeal was lodged on Saturday, Trump told reporters at his private Mar-a-Lago resort in Palm Beach, Florida: “We’ll win. For the safety of the country, we’ll win.”
Trump’s comments followed a personal attack on US district judge James Robart, the Seattle-based justice who made the court ruling on Friday which questioned the constitutionality of Trump’s order banning entry to the US by people from seven mainly Muslim countries.
But the justice department filing warned that Robart’s ruling posed an immediate harm to the public, thwarted enforcement of an executive order and “second-guesses the president’s national security judgment about the quantum of risk posed by the admission of certain classes of (non-citizens) and the best means of minimizing that risk”.
The filing also criticised Robart’s legal reasoning, saying it violated the separation of powers and stepped on the president’s authority as commander chief. The appeal said the state of Washington lacked standing to challenge the order and said
Congress gave the president “the unreviewable authority to suspend the admission of any class” of visitor”.
Earlier on Saturday, Trump had unleashed a Twitter assault on Robart. “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Trump tweeted.
Trump, who has said “extreme vetting” of refugees and immigrants is needed to prevent terrorist attacks, continued to criticise the decision in tweets throughout Saturday.
“The judge opens up our country to potential terrorists and others that do not have our best interests at heart. Bad people are very happy!” he tweeted.
The justice department’s appeal promises to create a showdown between the new administration and the judiciary over a policy that Trump consistently promised to deliver while on the campaign trail.
But the ban’s implementation has also placed under close scrutiny the role of the authors of the travel ban order – Trump’s strategist Steve Bannon and aide Steven Miller – as the administration tries to assert its authority on the Washington bureaucracy.
After a week of chaos at airports across the US since the ban was imposed, the department of homeland security said on Saturday it would return to its normal procedures for screening travellers as it lifted the restrictions in accordance with the court ruling.
Refugees and thousands of travellers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen who had been prevented from travelling since last weekend by Trump’s executive order scrambled to get flights to quickly enter the United States.
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Immigration advocacy groups including the American Civil Liberties Union and International Refugee Assistance Project issued a joint statement on Saturday urging those with now valid visas from the seven nations “to consider rebooking travel to the United States immediately” because the ruling could be overturned or put on hold.
A US state department email seen by Reuters said the department was working to begin admitting refugees, including Syrians, as soon as Monday.
The justice department did not say when it would file its appeal with the ninth circuit US court of appeals.
A three-judge panel will decide whether to uphold the order or suspend it pending a full appeal. The panel consists of appointees of George W Bush and two former Democratic presidents, Jimmy Carter and Barack Obama. Its ruling could come at any time.
The appeal now goes to a three-judge panel which can act at anytime to uphold the order or suspend it pending a full appeal. A Justice Department spokesman declined to comment beyond the filing.
The travel ban brought protests across the US and the world at the weekend. In America there were demonstrations in New York, Philadelphia and Los Angeles among others, and also outside Trump’s Florida resort on Saturday night where he was attending a ball with his wife Melania. There were also protests in London, Paris, Berlin, Jakarta, Manila, Hong Kong, Sydney and Melbourne.
Trump’s attack on Robart also brought an angry response from Democrats. Nancy Pelosi, the Democratic leader in the House, said: “No matter how many times the president attacks this judge … it won’t change the fact that this ban is unconstitutional, immoral and dangerous.”
Democratic senator Patrick Leahy of Vermont said in a statement on Saturday that Trump’s “hostility toward the rule of law is not just embarrassing, it is dangerous. He seems intent on precipitating a constitutional crisis”.
Criticising the judge’s decision could make it tougher for justice department attorneys as they seek to defend the executive order in Washington state and other courts, said Jonathan Turley, a law professor at George Washington University.
Presidents were usually circumspect about commenting on government litigation. “It’s hard for the president to demand that courts respect his inherent authority when he is disrespecting the inherent authority of the judiciary. That certainly tends to poison the well for litigation,” Turley said.
It is unusual for a president to attack a member of the judiciary, which the US constitution designates as a check to the power of the executive branch and Congress. Reached by email on Saturday, Robart declined comment on Trump’s tweets.
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“Read the ‘so-called’ Constitution,” tweeted Representative Adam Schiff, the top Democrat on the House intelligence committee.
In an interview with ABC scheduled to air on Sunday, vice president Mike Pence said he did not think Trump’s criticisms of the judge undermined the separation of powers. “I think the American people are very accustomed to this president speaking his mind and speaking very straight with them,” Pence said, according to an excerpt of the interview.
The court ruling was the first move in what could be months of legal challenges to Trump’s push to clamp down on immigration.
The sudden reversal of the ban catapulted would-be immigrants back to airports, with uncertainty over how long the window to enter the US will remain open.
In Erbil, the capital of the Kurdish region of northern Iraq, Fuad Sharef and his family prepared to fly on Saturday to Istanbul and then New York before starting a new life in Nashville, Tennessee.
“I am very happy that we are going to travel today. Finally, we made it,” said Sharef, who was stopped from boarding a New York-bound flight last week.
'An epic confrontation': Trump travel ban takes US to brink of crisis
The president attacked a judge who blocked his ban on refugees and travelers from Muslim-majority countries. Then the government appealed the ruling
Sunday 5 February 2017 02.17 GMT
‘Lack of respect’: Democrats hit back at Trump outrage over ban ruling
As the Trump administration prepared to challenge a ruling against its executive order on refugees and travel from seven Muslim-majority countries, experts said the US had been brought to the brink of a full-blown constitutional crisis.
“This is an epic confrontation between the presidency and the constitution,” says Marci Hamilton, a constitutional lawyer and scholar of religion at the University of Pennsylvania.
“The moment Donald Trump suggests anyone disobey the federal court order then we will be in a constitutional crisis.”
The ruling was made on Friday night in Seattle by federal judge James Robart. On Saturday, the president attacked Robart on Twitter, calling him a “so-called judge” and saying his opinion was “ridiculous and will be overturned”.
Only the fact that the Department of Justice did not file for an emergency stay on Friday night kept a constitutional crisis from developing, Hamilton said. It began the process on Saturday evening but for now, following chaos at airports last weekend, the doors to the US are once again open to vetted refugees and people with valid papers from the seven predominantly Muslim countries named in Trump’s executive order.
Robart sided with Washington state and Minnesota and declared the entire travel ban unconstitutional. Other states are also suing the government but Washington attorney general Bob Ferguson argued the widest case: that the Trump order violated the guarantee of equal protection and the first amendment’s establishment clause, infringed the constitutional right to due process and contravened the federal Immigration and Nationality Act.
Washington state and others can now be expected to go to the next level, Hamilton said, in an attempt to turn the temporary restraining order won in Seattle into a more powerful preliminary injunction and, ultimately, a permanent injunction. Fierce counter arguments from the DoJ can be expected, with potential for a trial.
“Then you are up to the level of the court of appeals and the supreme court of the United States,” Hamilton said.
That he is willing to wait before pursuing an emergency stay makes you ask what kind of ‘emergency’ is he talking about?
Marci Hamilton, constitutional lawyer
Observers were stunned by the apparent lack of legal groundwork done by the White House aides – reportedly senior counsel Steve Bannon and policy chief Steven Miller – who wrote Trump’s executive order, thereby producing a lack of clarity which contributed to chaos at airports and rulings against the administration.
Trump has argued that he must keep the nation safe from terrorists, and that the White House has huge power in matters of national security.
A clue to the president’s vulnerability, Hamilton said, lies in the White House’s intention to seek an emergency stay – but not immediately.
“A president can override the constitution with emergency powers if there is, in fact, an emergency,” she said. “But that means a lot more than the potential that a few people might arrive over here from certain countries.
“The 11 September 2001 terrorist attack was an emergency – the president then unilaterally shut down airports and air travel and people couldn’t get into the US for a while.
“[Trump] hasn’t produced evidence about terrorists from these countries trying to enter America. The CIA tracks terrorists all the time, there’s a system for that. And the fact that he is willing to wait … before pursuing an emergency stay again makes you ask what kind of ‘emergency’ is he talking about?”
Patrick Leahy, the ranking Democrat on the Senate judiciary committee, said in a statement on Saturday that Trump seemed intent on precipitating a constitutional crisis.
“The president’s hostility toward the rule of law is not just embarrassing, it’s dangerous,” Leahy said, calling the travel ban an “arbitrary and shameful” attempt to discriminate against Muslims.
The ban blocked nationals or non-US dual-nationals from Iran, Iraq, Syria, Yemen, Somalia, Libya and Sudan from entering the US, including permanent residents and those on valid visas, and barred all refugees for 120 days and Syrian refugees indefinitely.
The temporary restraining order (TRO) emanating from Washington will be in effect for 14 days, if a court does not grant the government’s expected request for an emergency stay. The DoJ cannot typically appeal to a court to overturn a TRO. If a TRO is turned into a preliminary injunction, it can.
The president’s hostility toward the rule of law is not just embarrassing, it’s dangerous
Patrick Leahy, Senate judiciary committee
“We are in uncharted territory,” said Paul Hughes, an immigration lawyer with Washington firm Mayer Brown.
Hughes is acting pro bono and as co-counsel with the Legal Aid Justice Center in the case of Tareq and Ammar Aziz, two Yemeni brothers who were deported from the US last weekend, having arrived at Dulles airport in Virginia. They had been en route to join their father in Michigan but were coerced, their suit claims, into relinquishing their green cards.
As a result of legal challenges, Hughes said, the brothers are due back in the US soon. The state of Virginia last week joined the brothers as plaintiffs in a suit filed against the president.
At a hearing on Friday in federal court in Alexandria, judge Leonie Brinkema said the executive order had caused chaos. She also sent a warning to Trump.
“There’s no question the president of the United States has almost – almost – unfettered power over foreign policy and border issues,” she said.
“But this is not ‘no limit’.”