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
Joanna Walters
@Joannawalters13
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’.”
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