U.S. turns to court in S.F. to appeal travel ban freeze
A day after a federal judge in Hawaii refused to reinstate President Trump’s latest travel ban, the administration took its case Thursday to the federal appeals court in San Francisco.
The Justice Department filed an appeal with the Ninth U.S. Circuit Court of Appeals challenging the injunction issued Wednesday by U.S. District Judge Derrick Watson, maintaining a nationwide freeze on Trump’s March 6 executive order. That order would impose a 90-day ban on U.S. admission of anyone from six nations whose populations are almost entirely Muslim and a 120-day ban on all U.S. admission of refugees.
The appeals court had rejected Trump’s previous order, which had been blocked by a federal judge in Washington state a week after Trump issued it Jan. 27. While in effect, it caused turmoil at airports at home and abroad and the suspension of an estimated 60,000 to 100,000 travelers’ visas
The Ninth Circuit upheld the judge’s decision in a 3-0 ruling Feb. 9, saying the executive order was likely to be found unconstitutional. The court rejected the administration’s argument that judges had no authority to second-guess presidential decisions on immigration and national security.
Trump’s second order is narrower than the first. It reduced the countries from seven to six by dropping Iraq, leaving Iran, Libya, Somalia, Sudan, Syria and Yemen covered by the 90-day ban. It maintained the 120-day ban on all U.S. admission of refugees, but removed a provision giving future preference to refugees from minority religions, which Trump had said was intended to help Christians from Muslim nations.
But Watson, and a judge in Maryland, ruling separately, said there was ample evidence that the revised order, like the earlier one, was motivated by bias against Muslims.
They cited Trump’s advocacy, as a presidential candidate, for a halt to immigration by Muslims, and post-election statements to the same effect by the president and others. In particular, former New York Mayor Rudy Giuliani, a Trump adviser, told an interviewer Jan. 28 that Trump had asked him to form a commission to find a legal way to enact a “Muslim ban.”
Watson also cited Trump’s remark at a March 15 rally that the new travel ban was “a watered-down version of the first one.”
The history of the revised executive order is “full of religious animus, invective and obvious pretext,” Watson said in a ruling Wednesday that transformed his previous temporary restraining order into a preliminary injunction, blocking Trump’s order indefinitely.
While the Justice Department wants the courts to ignore that evidence, the judge said, “the court will not crawl into a corner, pull the shutter closed, and pretend it has not seen what it has.”
The three judges on the panel that will consider the department’s appeal have not yet been named, but under the court’s usual procedures, they will not be the same ones who rejected the earlier order.
The Justice Department has already asked another appeals court to overturn the Maryland ruling blocking just the 90-day ban on U.S. admission from the six mostly Muslim nations. That court has scheduled a hearing May 8.
Even if the government won that case, Watson’s order would remain in effect unless a higher court overruled it.