Appeals Court Denies Federal Government’s Request For Stay Of Travel Ban Order
An initial setback for the Federal Government in its appeal of the ruling putting President Trump's Muslim travel ban on hold.
As expected, the Trump Administration filed its appeal of the order of a Seattle-based Federal District Court Judge halting the President’s order barring travel to and from seven majority Muslim nations last night. As a first step, though, they suffered a bit of a setback in that the Ninth Circuit declined to put Judge Robart’s ruling on hold pending appeal:
WEST PALM BEACH, Fla. — A federal appeals court early Sunday rejected a request by the Justice Department to immediately restore President Trump’s targeted travel ban, deepening a legal showdown over his authority to tighten the nation’s borders in the name of protecting Americans from terrorism.
In the legal back and forth over the travel ban, the United States Court of Appeals for the Ninth Circuit in San Francisco said a reply from the Trump administration was now due on Monday.
The ruling meant that refugees and travelers from seven predominantly Muslim nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — who were barred by an executive order signed by the president on Jan. 27 would, for now, continue to be able to enter the country.
After a Federal District Court in Seattle blocked Mr. Trump’s order nationwide on Friday, the Justice Department appealed the ruling late Saturday, saying that the president had the constitutional authority to order the ban and that the court ruling “second-guesses the president’s national security judgment.”
On Saturday night, as Mr. Trump arrived at a Red Cross gala at Mar-a-Lago, his waterfront Florida resort, where he was spending the first getaway weekend of his presidency, reporters asked him if he was confident he would prevail in the government’s appeal. “We’ll win,” he replied. “For the safety of the country, we’ll win.”
The legal maneuvering led Mr. Trump to lash out at Judge James Robart of the Federal District Court in Seattle throughout the day, prompting criticism that the president had failed to respect the judicial branch and its power to check on his authority.
In a Twitter post on Saturday, Mr. Trump wrote, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
The Justice Department’s filing sought to have the United States Court of Appeals for the Ninth Circuit block the Seattle judge’s decision and asked that the lower court’s ruling be stayed pending the appeal.
n its argument for an appeal, the Justice Department had said the president had an “unreviewable authority” to suspend the entry of any class of foreigners. It said the ruling by Judge Robart was too broad, “untethered” to the claims of the State of Washington, and in conflict with a ruling by another federal district judge, in Boston, who had upheld the order.
The Justice Department argued that the president acted well within his constitutional authority. Blocking the order, it concluded, “immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.”
Judge Robart, who was appointed by President George W. Bush, declared in his ruling on Friday that “there’s no support” for the administration’s argument that “we have to protect the U.S. from individuals” from the affected countries.
His ruling also barred the administration from enforcing its limits on accepting refugees. The State Department said Saturday that refugees, including Syrians, could begin arriving as early as Monday. Syrians had faced an indefinite ban under the executive order.
The Ninth Circuit court moved quickly to reject the administration’s appeal, a measure of the urgency and intense interest in the case.
Despite Mr. Trump’s vehement criticism of the ruling and the certainty that it would be appealed, the government agencies at the center of the issue, the State Department and the Department of Homeland Security, moved quickly to comply.
Lawrence Bartlett, the State Department’s director of refugee resettlement, wrote in a departmental email that officials were working to rebook travel for refugees who had previously been scheduled to leave for the United States over a three-week period that will end Feb. 17. A State Department official said the extended time frame accounted for the fact that some refugees will have to make difficult journeys back to airports from refugee camps.
A United Nations spokesman, Leonard Doyle, said about 2,000 refugees were ready to travel.
Airlines, citing American customs officials, were telling passengers from the seven countries that their visas were once again valid. Those carriers, however, have yet to report an uptick in travel, and there appeared to be no rush to airports by visa holders in Europe and the Middle East intent on making their way to the United States.
Etihad Airways, the United Arab Emirates’ national carrier, said in a statement: “Following advice received today from the U.S. Customs and Border Protection unit at Abu Dhabi Airport, the airline will again be accepting nationals from the seven countries named last week.” Other Arab carriers, including Qatar Airways, issued similar statements.
A group of advocacy organizations that had worked to overturn the executive order and help immigrants and refugees stranded at airports issued a statement on Saturday afternoon encouraging travelers “to rebook travel to the United States immediately.”
“We have been in contact with hundreds of people impacted by the ban, and we are urging them to get on planes as quickly as possible,” Clare Kane, a law student intern at the Jerome N. Frank Legal Services Organization at Yale Law School, one of the groups involved, said in a statement.
But some officials were being more cautious, advising travelers to wait for further clarity. The American Embassy in Baghdad said it was waiting for additional guidance from Washington. “We don’t know what the effect will be, but we’re working to get more information,” the embassy told The Associated Press in a statement.
What this means is that Judge Robart’s ruling remains in effect at least until the Ninth Circuit, or a high Court, rules otherwise. As an initial matter, though, I’d caution against reading too much into this particular decision as being indicative of where the Ninth Circuit might come down on the matter before it. All it really means is that the particular Circuit Court Judge or panel that was handed this case decided that it was best to keep Judge Robart’s order in place until both sides have been able to make their arguments to the Court. In that regard, the order that was released last night also provides that the reply from the attorneys from the Plaintiffs/Appellees is due today no later than 11:59pm Pacific time, and the reply from the Defendants/Appellants is due by 3:00pm on Monday. There hasn’t been a hearing scheduled in the matter yet, but assuming the Court wants one rather than deciding to rule initially based on the filings alone but given this schedule, it’s likely it wouldn’t be scheduled until late in the day on Monday or Tuesday morning. At least until that time, the order putting the travel ban on hold will remain in effect and hundreds, potentially thousands, of people will act in reliance upon that Order. The Ninth Circuit is no doubt aware of this fact, so the fact that they did not put Judge Robart’s ruling on hold is, if not necessarily indicative of how they may ultimately rule on the request to stay the Friday order. If the Court was inclined to conclude that Judge Robart was clearly wrong, for example, then it seems likely that they would have stayed his order in order to prevent people from acting in reliance on that order only to ultimately find themselves trapped inside or outside the United States.
In the meantime, the Federal Government has already previewed its argument in the motion it filed for an initial stay, and Buzzfeed’s Chris Geidner examines it:
In making their case for the stay, Justice Department lawyers wrote in a Saturday night filing, “The injunction immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.”
In the brief, the Justice Department lawyers argue that the trial court’s order violates the constitutional separation of powers, harms the public “by thwarting enforcement of an Executive Order” in the areas of immigration matters and foreign affairs, and “second-guesses the President’s national security judgment” regarding admission of people to the US.
Regarding the particular circumstance of the lawsuit, brought by the state of Washington, the Justice Department argues that the state has no legal standing to bring the claim because Washington “is not itself subject to the Executive Order.” Even if it does, the Justice Department continues, the court’s order is too broad because it stopped enforcement of parts of Trump’s executive order “untethered to Washington’s particular claims.”
Although temporary restraining orders like that issued by Robart are not generally appealable, Justice Department lawyers argue this order should be appealable because there was an adversarial hearing — as in, both sides were there and presented arguments — and, they assert that the length of the injunction here is “indefinite.” As such, they argue, Robart’s order should be treated like a preliminary injunction, which would be appealable.
Whether the Ninth Circuit ultimately finds the Federal Government or the Plaintiffs to be more persuasive is something that only time will tell. In the meantime, we’ll just have to wait and see. If you want to follow the legal proceedings in this matter, the Court has set up a public access page that is available to the general public on which all of the current filings are available. Additionally, the Ninth Circuit has been known to allow some of its hearings to be lives-streamed over the Internet. The most high profile case this happened in was the hearing on the appeal of the case involving California’s Proposition 8, which overturned a State Supreme Court ruling mandating same-sex marriage statewide. If there is live-streaming of the argument here, I’ll post the details when they become available for anyone who might be interested.
Update: As noted in the comments, the panel that has been assigned to this case is made up of two Judges appointed by Democrats. Judge William Canby Jr., who was appointed by President Carter, Judge Richard Clifton, who was appointed by President George W. Bush, and Judge Michele Friedland, appointed by President Obama.
Here’s the Federal Government’s Emergency Motion: