White House Calls Travel Ban ‘a Lawful Exercise’ of Authority

by Matthew Renda, Court House News,  February 6, 2017

SAN FRANCISCO (CN) – President Donald Trump was well within his constitutional authority to issue the ban on travelers from seven Muslim-majority nations, government attorneys said in a response filed with the Ninth Circuit on Monday afternoon. Washington state and others – including 97 corporations and businesses – filed briefs over the weekend, arguing that the president’s power is not unlimited, that his order discriminates on religious grounds and ultimately endangers Americans.

“The executive order is a lawful exercise of the president’s authority over the entry of aliens into the United States and the admission of refugees,” Deputy Solicitor General Edwin Kneedler said in the reply.

The response was filed with the Ninth Circuit minutes before the 3 p.m. deadline, and furthers the Trump administration’s two main arguments in support of the executive order that bars entry to citizens from seven Muslim-majority nations in the Middle East.

Meanwhile, former security officials, major technology companies, civil rights advocacy groups and attorneys general from 16 states all filed amicus briefs urging the Ninth Circuit to keep a federal judge’s halt on the travel ban while the courts sort out its legality.

The Trump administration asserts the office of the president maintains broad discretion when it comes to matters of national security and immigration, and that Trump’s order falls well within such discretion. Secondly, the administration argues Washington state lacks the standing necessary to bring the claims since it does not issue travel visas.

“As an initial matter, the state cannot challenge the denial of entry or visas to third-party aliens,” Trump’s lawyers argue. “It is well settled that a state lacks authority to sue ‘as the representative of its citizens’ to protect them from the operation of federal law.”

Trump’s most controversial order, which elicited immediate protests at airports throughout the nation, prompted Washington state Attorney General Bob Ferguson to sue last week on grounds that the ban violates Fifth Amendment’s due process guarantees, the Establishment Clause of the First Amendment and the Immigration and Nationality Act’s prohibition against discrimination on the basis of national origin.

U.S. District Judge James Robart sided with Ferguson on Friday, granting a temporary restraining order on the travel ban that effectively bars customs and border patrol workers from enforcing Trump’s executive order.

The Trump administration immediately appealed the decision, asking the Ninth Circuit for a temporary stay of the restraining order. The appeals court declined, but asked each side for more briefing by Monday afternoon.

Meanwhile, 97 technology companies, including Apple, Google, Facebook, Netflix and other major companies filed amicus briefs on behalf of Washington state’s position, arguing the ban “will make it far more difficult and expensive for U.S. companies to hire some of the world’s best talent – and impede them from competing in the global marketplace.”

New York Attorney General Eric Schneiderman, one of the 16 state AGs that signed onto Monday’s amicus brief said, “President Trump’s executive order is unconstitutional, unlawful, and fundamentally un-American – and we won’t stand by while it undermines our states’ families, economies, and institutions.”

The American Civil Liberties Union, the Fred Korematsu Center for Law, HIAS – formerly the Hebrew Immigrant Aid Society – and other refugee advocates and civil rights proponents filed similar briefs. They argued that while the president has broad constitutional authority on matters of national security he lacks proof that refugees from these nations actually pose a national security risk.

Furthermore, they argue there is sufficient precedent for judicial review of executive branch actions particularly if there is evidence the executive branch acted in bad faith, which some legal experts say is the crux of Washington state’s argument – namely that the Trump administration enacted the travel ban with discriminatory intent.

A litany of former high-ranking U.S. security officials, including Madeleine Albright, Leon Panetta, Janet Napolitano and John Kerry – all Democrats – signed a declaration arguing the travel ban endangers American citizens.

“We view the order as one that ultimately undermines the national security of the United States, rather than making us safer,” the officials say in the declaration. “The order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the administration has not shown to be inadequate.”

Finally, a coalition of 16 state attorneys general also filed amicus briefs in the high-profile case, saying the states do have standing due to the harm incurred to them as a result of the ban. The AGs say thousands of their residents who originally hail from the seven affected nations are employed as faculty at state-run educational institutions.

The state of Hawaii, which filed a lawsuit over the travel ban with similar claims on Friday, had asked to intervene in the Washington state case. The Ninth Circuit declined, instead allowing the Aloha State to file a friend-of-the-court brief.

The travel ban, signed by Trump on Jan. 27 after a week in office, banned entry of all refugees for 120 days, halted admissions from war-torn Syria indefinitely, and barred entry of citizens of Iraq, Iran, Sudan, Libya, Somalia and Yemen for three months.

All seven nations are largely Muslim, prompting many to call it a Muslim ban. The White House has since pushed back and said the executive order has nothing to do with religion and more to do with the fact that they are terror-prone and therefore a national security risk.

Trump himself has taken to Twitter, calling Robart – an appointee of the George W. Bush administration – a “so-called judge.”

“What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?” Trump said in a follow-up tweet.

While many of Trump’s critics say this demonstrates Trump’s authoritarian propensities and shows a lack of understanding of the separation of powers, Trump administration lawyers – albeit in more measured terms – argue Trump is right, that the president does have broad discretion when it comes to matters of immigration and national security.

The Ninth Circuit, based in San Francisco, has tentatively scheduled a telephonic hearing on the stay for Tuesday afternoon. Experts believe the case will eventually end up at Supreme Court.

The acting Solicitor General Noel Francisco did not sign Monday’s motion, citing an abundance of caution as his former law firm filed an amicus brief in the case the day before.

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News Release: HAWAII CASE STAYED SO LONG AS NATIONWIDE ORDER BLOCKING PRESIDENT’S IMMIGRATION BAN REMAINS IN PLACE