Ad­min­is­tra­tion files for ap­peal of rul­ing on sec­ond travel ban

Out­come may hinge on le­gal ex­tent of pres­i­den­tial pow­ers.

Austin American-Statesman - - VIEWPOINTS - By Devlin Bar­rett Wash­ing­ton Post

The Trump ad­min­is­tra­tion filed court pa­pers Fri­day hop­ing to sal­vage its sec­ond ver­sion of a travel ban, after two judges in sep­a­rate cases this week found it likely vi­o­lated the Con­sti­tu­tion.

The Jus­tice De­part­ment filed le­gal pa­pers in fed­eral court in Mary­land, set­ting up a new le­gal showdown at the fed­eral Fourth Cir­cuit Court of Ap­peals in Rich­mond, Va.

Ear­lier this week, fed­eral judges in Hawaii and Mary­land is­sued or­ders against the travel ban, find­ing it vi­o­lated the First Amend­ment by dis­fa­vor­ing a par­tic­u­lar reli­gion. If the Jus­tice De­part­ment had ap­pealed the Hawaii or­der, the case would have gone to the same San Fran­cisco-based ap­peals court that re­jected an ear­lier ver­sion of the travel ban. The Rich­mond court is con­sid­ered to lean more con­ser­va­tive.

The First Amend­ment pro­hibits any “law re­spect­ing an es­tab­lish­ment of reli­gion,” mean­ing the govern­ment must re­main neu­tral be­tween re­li­gions — or be­tween re­li­gions and non-reli­gion — and not fa­vor or dis­fa­vor a par­tic­u­lar faith.

Crit­ics of the ex­ec­u­tive or­der call it an at­tempt to ful­fill Pres­i­dent Don­ald Trump’s cam­paign prom­ise to tem­po­rar­ily ban Mus­lims from en­ter­ing the United States. The ad­min­is­tra­tion de­nies it is a Mus­lim ban, and says the or­der aims to pre­vent ter­ror­ism by sus­pend­ing vis­i­tors from ter­ror-prone coun­tries where screen­ing of in­di­vid­u­als seek­ing U.S. visas may not be ef­fec­tive.

The Ninth Cir­cuit Court of Ap­peals pre­vi­ously ruled against the first ver­sion of Trump’s ex­ec­u­tive or­der sus­pend­ing the U.S. refugee pro­gram and tem­po­rar­ily bar­ring vis­i­tors from seven ma­jor­ity Mus­lim coun­tries — Libya, Iran, Iraq, Su­dan, So­ma­lia, Syria, and Ye­men. But the rul­ing was on tech­ni­cal grounds: A three-judge panel found that ex­ec­u­tive or­der vi­o­lated the due process rights of peo­ple who had pre­vi­ously been ap­proved to visit the United States.

In re­sponse to the le­gal set­back, the White House crafted a new ver­sion that dropped Iraq from the list of coun­tries and ex­empted hold­ers of valid visas and green cards.

In Hawaii, U.S. District Judge Der­rick Wat­son’s 43page rul­ing used the pub­lic state­ments of the pres­i­dent and his se­nior ad­vi­sors to con­clude there was a “strong like­li­hood of suc­cess” that op­po­nents of the travel ban would be able to prove the ex­ec­u­tive or­der ran afoul of the Con­sti­tu­tion.

“A rea­son­able, ob­jec­tive ob­server — en­light­ened by the spe­cific his­tor­i­cal con­text, con­tem­po­ra­ne­ous pub­lic state­ments, and spe­cific se­quence of events lead­ing to its is­suance — would con­clude that the Ex­ec­u­tive Or­der was is­sued with a pur­pose to dis­fa­vor a par­tic­u­lar reli­gion,” War­son wrote.

Trump, speak­ing at a rally in Nashville shortly after the judge’s de­ci­sion, in­sisted he wouldn’t back down.

“We’re go­ing to fight this ter­ri­ble rul­ing,” he said, to ap­plause from the crowd. “We’re go­ing to take our case as far as it needs to go, in­clud­ing all the way up to the Supreme Court.”

In the Mary­land case, U.S. District Judge Theodore Chuang wrote that the ori­gins of the travel ban sug­gest that re­li­gious screen­ing, not na­tional se­cu­rity, was the pri­mary pur­pose.

“The fact that the White House took the highly ir­reg­u­lar step of first in­tro­duc­ing the travel ban with­out re­ceiv­ing the in­put and judg­ment of the rel­e­vant na­tional se­cu­rity agen­cies strongly sug­gests that the re­li­gious pur­pose was pri­mary, and the na­tional se­cu­rity pur­pose, even if le­git­i­mate, is a sec­ondary post hoc ra­tio­nale,” the judge wrote.

Chuang also found that the travel ban likely vi­o­lated fed­eral im­mi­gra­tion law bar­ring dis­crim­i­na­tion on the ba­sis of na­tion­al­ity in the is­suance of im­mi­grant visas.

Ul­ti­mately, the cases will come down to the ways in which that law and the Con­sti­tu­tion con­strain the pres­i­dent’s author­ity.

“That’s the tug of war that is go­ing to play out and, I sus­pect, go be­fore the Supreme Court,” said Ted Ruthizer, a for­mer pres­i­dent of the Amer­i­can Im­mi­gra­tion Lawyers As­so­ci­a­tion.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.