‘See you in court’

Trump prom­ises more le­gal ac­tion over travel ban

Cape Breton Post - - WORLD -

U.S. Pres­i­dent Don­ald Trump has promised more le­gal ac­tion af­ter a fed­eral ap­peals court re­fused to re­in­state his ban on trav­ellers from seven pre­dom­i­nantly Mus­lim na­tions. Trump tweeted “SEE YOU IN COURT” af­ter the de­ci­sion came out Thurs­day, but what he has in mind re­mains to be seen.

Trump said Fri­day that he has “no doubt” he will win the case in court and promised to take ad­di­tional, un­spec­i­fied se­cu­rity steps “rapidly.”

The 3-0 rul­ing means that refugees and peo­ple from the seven na­tions — Iran, Iraq, Libya, So­ma­lia, Su­dan, Syria and Ye­men — can con­tinue en­ter­ing the United States for now. The ad­min­is­tra­tion has sev­eral op­tions on how to pro­ceed. Here’s a look at where the le­gal fight goes from here.

Re­hear­ing at the Ap­peals court

The Trump ad­min­is­tra­tion could de­cide to ask the 9th U.S. Cir­cuit Court of Ap­peals to re­con­sider the three-judge panel’s rul­ing. But the odds of suc­cess seem low, said Margo Sch­langer, a law pro­fes­sor at the Univer­sity of Michi­gan. She noted that the three-judge panel was unan­i­mous and in­cluded a judge cho­sen by a Repub­li­can pres­i­dent.

Supreme Court ap­peal

The gov­ern­ment could file an emer­gency ap­peal to the Supreme Court and ask the jus­tices to re­store the ban. But it would take at least five jus­tices to over­turn the rul­ing from the 9th U.S. Cir­cuit Court of Ap­peals, and that may be a long shot. The high court still has only eight mem­bers since the death of Jus­tice An­tonin Scalia — four con­ser­va­tive and four lib­eral jus­tices.

“There are al­most surely four votes to deny an emer­gency re­quest to re­in­state the or­der,” said Peter Spiro, a law pro­fes­sor at Tem­ple Univer­sity.

The last im­mi­gra­tion case to reach the jus­tices ended in a 4-4 dead­lock last year. That sug­gests a sim­i­lar split over Trump’s or­der, which would let the 9th Cir­cuit rul­ing stand and keep the freeze in place.

Wait­ing for Gor­such

If the Supreme Court de­clines to in­ter­vene right away, the case would re­main in the 9th Cir­cuit and ul­ti­mately be con­sid­ered on its le­gal mer­its. It also could re­turn to U.S. District Judge James Ro­bart in Seat­tle, who tem­po­rar­ily blocked the ban af­ter Washington state and Min­nesota urged a na­tion­wide hold on the Jan. 27 or­der.

The lower court ac­tion so far is tem­po­rary and hasn’t re­solved broader ques­tions about the le­gal­ity of Trump’s or­der. It sim­ply halts de­por­ta­tions or other ac­tions un­til judges can more fully con­sider whether the or­der vi­o­lates le­gal or con­sti­tu­tional rights.

Allowing the case to play out longer at the ap­peals court has one ad­van­tage: By the time a rul­ing on the mer­its comes down, the Se­nate may have con­firmed Judge Neil Gor­such to the Supreme Court. That may im­prove Trump’s chances to pre­vail on ap­peal.

But just how the is­sue might reach the Supreme Court isn’t clear. Sev­eral other chal­lenges have been launched in courts around the coun­try, and the court could opt to wait be­fore step­ping in.

Re­vis­ing the ex­ec­u­tive or­der

The White House could amend the ex­ec­u­tive or­der to ex­pressly carve out ex­ist­ing green card hold­ers and other peo­ple that al­ready have some ties to the United States. Up to 60,000 visas were ini­tially can­celled in the wake of the ban, af­fect­ing the lives of stu­dents, pro­fes­sors and work­ers.

White House coun­sel Don­ald McGahn had is­sued guid­ance days af­ter the ex­ec­u­tive or­der say­ing it didn’t ap­ply to le­gal per­ma­nent res­i­dents of the U.S., but the ap­peals court said that was not enough.

“The gov­ern­ment has of­fered no author­ity es­tab­lish­ing that the White House coun­sel is em­pow­ered to is­sue an amended or­der su­per­sed­ing the ex­ec­u­tive or­der signed by the pres­i­dent,” the opin­ion said.

Re­vis­ing the or­der “shifts the le­gal bound­aries so that it be­comes a tougher con­sti­tu­tional tar­get,” Spiro said.

The ap­peals court is­sued a sharp re­buke to the Jus­tice De­part­ment’s ar­gu­ment that the pres­i­dent has the con­sti­tu­tional power to re­strict en­try to the United States to pre­vent ter­ror­ism, and that courts can­not sec­ond-guess that author­ity.

“There is no prece­dent to sup­port this claimed un­re­viewa­bil­ity, which runs con­trary to the fun­da­men­tal struc­ture of our con­sti­tu­tional democ­racy,” the opin­ion said.

Washington state, Min­nesota and other states say Trump showed his in­tent in the pres­i­den­tial cam­paign when he called for a ban on Mus­lims en­ter­ing the coun­try. They also say his or­der dis­crim­i­nates against Mus­lims be­cause it pro­vides ex­cep­tions for refugees who prac­tice a re­li­gion that makes them a mi­nor­ity in their home coun­try. That would favour Chris­tians in the coun­tries af­fected.

The ap­peals court said the ad­min­is­tra­tion failed to show that the or­der sat­is­fied con­sti­tu­tional re­quire­ments to pro­vide no­tice or a hear­ing be­fore re­strict­ing travel. But it did not rule on whether the or­der vi­o­lated re­li­gious pro­tec­tions un­der the First Amend­ment.

Jus­tice De­part­ment lawyer Erez Reu­veni told a Vir­ginia judge hear­ing ar­gu­ments in a sim­i­lar case on Fri­day that the ad­min­is­tra­tion hasn’t de­cided what to do.


Refugee sup­port­ers look on af­ter Ab­disel­lam Hassen Ahmed, a So­mali refugee who had been stuck in limbo af­ter Pres­i­dent Don­ald Trump tem­po­rar­ily banned refugee en­tries, ar­rival at Salt Lake In­ter­na­tional Air­port, Fri­day.

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