Court weighs Trump travel ban in test of presidential power

Published Wed, Feb 8, 2017 · 12:52 AM
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[NEW YORK] The Department of Justice told a federal appeals court that President Donald Trump's targeted travel ban was well within the powers granted to him by the Constitution and Congress and that his order was based on terrorism assessments made by the government before he took office.

The judges quickly challenged the government's lawyer, August Flentje, asking the government to focus on the narrow issue at hand, rather than the thorny constitutional issues raised by the travel ban.

They interrupted him, pressing him to explain what limits apply to the president's authority on immigration, as well as why the two states that last week won a temporary halt to his order didn't have the right to challenge it.

Judge Richard Clifton called the US argument about the terrorism risk "pretty abstract". Mr Flentje disputed that, pointing out that those designations were made before Mr Trump took office last month and that the president had broad authority to limit who entered the US.

"I'm not sure I'm convincing the court, so I want to make one really key point with regard to the injunction, and that is that it's overbroad," Mr Flentje said.

The panel is weighing whether to reinstate Mr Trump's executive order barring immigrants, refugees and visitors from seven predominantly Muslim countries, the most ambitious initiative of the young administration.

A Seattle federal judge, ruling Feb 3 in a lawsuit by the states of Washington and Minnesota, put Mr Trump's order on hold, temporarily reopening US borders to them.

The arguments, streamed live by the San Francisco-based appeals court, are being heard in an unusual fashion: via conference call. The judges are in Phoenix, Honolulu and San Jose, California, and the lawyers for the states and the Trump administrations are calling in from their offices.

The panel said a ruling isn't expected Tuesday, "but probably this week".

The judges could decide to temporarily retain the lower court hold, lift it for now or keep some part of it in place.

Whatever the decision, the matter is likely to turn immediately to the US Supreme Court, though the underlying disputes - over Constitutional principles and the extent of presidential authority - could drag on for months.

Washington and Minnesota contend Mr Trump's order is unconstitutional and hurts their residents and businesses, and that the president "unleashed chaos" by signing it on Jan 27. Taking their side in friend-of-the-court briefs are more than 90 companies including Apple Inc, Facebook Inc and Microsoft Corp.

US District Judge James Robart's temporary restraining order on Friday halted the ban while the case is being litigated. Whatever the appeals court decides, Mr Robart is moving ahead with the states' request for a long-term injunction, beginning with written arguments next week.

The Trump administration argument is that the Robart decision threatens national security and second-guesses the president, who has wide authority to dictate who is allowed into the US.

The judge exceeded his authority by extending his ruling to include the entire country, according to the Justice Department lawyers, though they left room for compromise by saying the ban should apply for now only to those who have never before been admitted to the US. That would allow those with student visas or so-called green cards who are abroad to return.

Mr Robart said voiding the president's order nationwide was needed for consistency.

Under the order, Syrian refugees would be barred indefinitely, and others fleeing their homelands claiming persecution or fear of violence for 120 days. No citizens of Syria, Iran, Iraq, Yemen, Somalia, Libya or Sudan could enter the US for 90 days.

Other federal courts, including one in New York's Brooklyn borough, have issued narrower rulings striking down certain parts of the ban. A federal judge in Boston last week upheld it, adding to confusion about whether it remained in place as tens of thousands awaited definitive word.

The panel hearing the case in San Francisco is comprised of William Canby, who was appointed by President Jimmy Carter; Richard Clifton, appointed by George W Bush; and Michelle Friedland, appointed by Barack Obama.


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