Ninth Circuit Says No Decision On Travel Ban Provision Of Trump's Executive Order Today

Matt Vespa
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Posted: Feb 08, 2017 2:49 PM
Ninth Circuit Says No Decision On Travel Ban Provision Of Trump's Executive Order Today

There will be no decision on the legality of President Trump’s executive order on immigration, specifically the travel provision, by the Ninth Circuit Court of Appeals today.

The New York Times’ Adam Liptak added that a decision is expected sometime this week. He also reported that the judges were skeptical of the Department of Justice’s arguments in favor of the travel moratorium in President Donald Trump’s executive order. The provision bars people from traveling into the U.S. from several predominantly Muslim countries (Syria, Somalia, Sudan, Libya Iran, Iran, and Yemen), though it is not a Muslim ban, contrary to what the news media has been saying about it. Three of the countries are designated as state sponsors of terrorism:

A Justice Department lawyer on Tuesday said courts should not second-guess President Trump’s targeted travel ban, drawing skepticism from a three-judge federal appeals panel weighing the limits of executive authority in cases of national security.

But even August E. Flentje, the Justice Department’s lawyer, sensed he was not gaining ground with that line of argument. “I’m not sure I’m convincing the court,” Mr. Flentje said.

It was a lively but technical hearing on an issue that has gripped much of the country’s attention — and that of foreign allies and Middle East nations — for the past week. Issued without warning on Jan. 27, just a week after Mr. Trump took office, the executive order disrupted travel and drew protests at the nation’s airports by suspending entry for people from seven predominantly Muslim countries and limiting the nation’s refugee program.

No matter how the United States Court of Appeals for the Ninth Circuit rules — in a decision that is expected within days — an appeal to the United States Supreme Court is likely.

Yet, this isn’t a constitutional challenge. The Ninth Circuit is only hearing arguments about whether the travel provisions should remained suspended or reinstated (via CNN):

The issue in front of the court at the moment is not whether or not Trump's travel ban is constitutional, but whether it will remain suspended for now.

It all centers on his executive order issued January 27 with little explanation or advance warning. The order bars citizens of seven Muslim-majority countries -- Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen -- from entering the US for 90 days, all refugees for 120 days and indefinitely halts refugees from Syria.

Friday, federal Judge James Robart of the US District Court for the Western District of Washington suspended key parts of the executive order nationwide.

[…]

The government counters that Robart's injunction should be lifted for now and the executive order should be cleared to go back into effect while the legal process continues.

"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," the lawyers wrote in briefs filed Monday night. They argued that the district court "erred" in entering a "sweeping nationwide injunction."

They argued that Congress has granted the President "broad discretion" to suspend "any class of aliens" into the United States.

But they acknowledged that if the Court were to allow the injunction to stand it should be limited to the class of individuals on whom the State's claims rest: "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future."

The Ninth Circuit Court of Appeals is one of the most liberal courts in the country, so we should expect a decision to go against the president. If that happens, as Liptak noted, expect this to go all the way to the Supreme Court.