Legal battles to continue after higher court denies request for immediate return to Trump’s travel ban
Donald Trump and first lady Melania Trump at Mar-a-Lago club in Palm Beach on Saturday. Photograph: Carlos Barria/Reuters
Martin Farrer and agencies
Sunday 5 February 2017
The US appeals court has denied the justice department’s request for an immediate reinstatement of Donald Trump’s controversial travel ban.
The ninth US circuit court of appeals in San Francisco made the ruling early on Sunday morning, and asked those challenging the ban to respond to the appeal filed by the Trump administration late on Saturday night, and the justice department to file a counter-response by Monday afternoon.
“Appellants’ request for an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal is denied,” the ruling said.
The justice department had earlier filed an appeal against a judge’s order lifting the ban, as the new administration’s flagship immigration policy threatened to unravel after one week.
The higher court’s denial of an immediate stay means legal battles over the ban will continue into the coming week at least.
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.”
The president’s comments followed a personal attack on US district judge James Robart, whose court ruling in Seattle on Friday questioned the constitutionality of Trump’s order banning people from seven mainly Muslim countries from entering the US.
But the justice department filing said 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-in-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 criticised Robart on Twitter, writing: “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
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 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 executive 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, the Department of Homeland Security said on Saturday it would return to its normal procedures for screening travellers as it lifted the restrictions following 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 scrambled to get flights to quickly enter the US.
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 “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 travel ban sparked protests across the US and the world at the weekend. There were demonstrations in New York, Philadelphia and Los Angeles as well as in other cities, 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 to comment on Trump’s tweets.
In an interview with ABC scheduled to air on Sunday, the 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.
The court ruling was the first move in what could be months of legal challenges to Trump’s clampdown 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.
Among those rushing to reach the US, Fuad Sharef and his family – from Erbil, Iraq – prepared to fly on Saturday to Istanbul and then to 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. – The Guardian