Court After Court Refuses to Reinstate Donald Trump’s Travel Ban

Featured image: Protesters assemble at John F. Kennedy International Airport in New York, Saturday, Jan. 28, 2017, after earlier in the day two Iraqi refugees were detained while trying to enter the country. On Friday, Jan. 27, President Donald Trump signed an executive order suspending all immigration from countries with terrorism concerns for 90 days. Countries included in the ban are Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen, which are all Muslim-majority nations. (Photo: AP Photo/Craig Ruttle)

On January 27, Donald J. Trump signed an executive order that banned immigrants from seven Muslim nations (Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia) from entering the United States for the next 90 days. New refugee admissions are suspended for 120 days. The Syrian refugee resettlement program was suspended indefinitely. Trump’s ill-conceived and illegal order has, predictably, thrown thousands of lives into chaos. Immigrants and refugees with visas are either being prevented from entering the country or are being detained when they arrive.

On February 1, I posted a blog titled “18 Ways to Help Immigrants & Refugees Impacted by Donald Trump’s Executive Order“. The post was my “reply all” to the many people who have reached out to me, asking how they can help. Consider this an update of sorts. This post chronicles the foreseeable journey of Trump’s  executive order through America’s co-equal branch of government: the judiciary. Spoiler alert: It hasn’t gone well for the Trump administration. Predictably, Trump  attacked the judges, cursed the rule of law, and blamed the media  for the many problems he created. I’ll continue to update this post as major events happen on this topic, but please keep one thing in mind as you read the content below: This is Not Normal!

February 4
United States District Senior Judge James Robart for the Western District of Washington State issued a nationwide restraining order blocking the travel ban put in place by Donald Trump’s January 27 executive order.

Washington became the first state to sue Trump over his controversial executive order on immigration, with a number of states, including New York, joining the effort this week.  The Seattle decision comes after other federal judges in Boston, Virginia and New York granted restraining orders preventing the government from deporting people affected by Trump’s travel ban.

In issuing his decision, Robart was siding with Washington Attorney General Bob Ferguson, who filed a suit to block key provisions of Trump’s executive order, including the travel ban and sections that bars Syrian refugees from entering the country.

Judge Robart suggested in court that Trump’s 90-day entry ban on people from the countries of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen was not “rationally based,” since no one from any those countries had been arrested in the U.S. on terrorism-related charges since 9/11. Additionally, Judge Robart’s order argues Trump’s executive action “adversely” affects “areas of employment, education, business, family relations and freedom to travel.” Reversing the action, the suit concluded, is thereby in the public interest: “These harms are significant and ongoing,” the order states.

Naturally, Mr. Trump to lashed out at Judge Robart  throughout the day, prompting criticism that Trump failed to respect the judicial branch and its power to check on his authority.  In a Twitter post on Saturday, Mr. Trump wrote, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

The Justice Department filed an appeal to the United States Court of Appeals for the Ninth Circuit. The DOJ’s appellate brief asked the 9th Circuit to stay Judge Robart’s order pending the appeal, arguing Trump has an “unreviewable” constitutional authority to suspend the entry of any class of foreigners into the United States. The DOJ further argued that any judicial ruling contrary to Trump’s executive order “second-guesses the president’s national security judgment.”

The Ninth Circuit court moved quickly to reject the administration’s appeal, a measure of the urgency and intense interest in the case.

free-attorneyPro bono lawyers and protesters at Los Angeles International Airport on January 29, 2017, rally against the Muslim immigration ban imposed by U.S. President Donald Trump. (Photo: Amanda Edwards / Getty).

February 9
A federal appeals panel has maintained the freeze on Trump’s controversial immigration order, meaning previously barred refugees and citizens from seven majority-Muslim countries can continue entering the United States.

In a unanimous 29-page opinion, three judges from the U.S. Court of Appeals for the 9th Circuit flatly rejected the government’s argument that suspension of the order should be lifted immediately for national security reasons, and they forcefully asserted their ability to serve as a check on the president’s power.

The judges wrote that any suggestion that they could not “runs contrary to the fundamental structure of our constitutional democracy.”

Trump reacted angrily on social media. He posted a Tweet just minutes after the ruling, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

Hillary Clinton, who lost the presidency to Trump in November, posted on Twitter simply, “3-0.”

The Justice Department could now ask the Supreme Court — which often defers to the president on matters of immigration and national security — to intervene. The Supreme Court, though, remains one justice short, and many see it as ideologically split 4 to 4. A tie would keep in place whatever the appeals court decides. The Justice Department could also ask the full 9th Circuit to consider the matter.

The appeals court opinion was written by Judge Michelle T. Friedland, who was appointed by President Barack Obama; Judge Richard R. Clifton, who was appointed by President George W. Bush; and Judge William C. Canby, who was appointed by President Jimmy Carter. It was detailed, but it does not represent a final judgment on Trump’s immigration ban.

Last Friday, U.S. District Judge James L. Robart granted the states of Washington and Minnesota a temporary restraining order on the ban. The appeals court judges noted their ruling was a “preliminary one,” and they were deciding only whether the government had “made a strong showing of its likely success” in getting the restraining order thrown out.

Federal courts in New York, California and elsewhere already had blocked aspects of the ban from being implemented, although one federal judge in Massachusetts declared that he did not think that challengers had demonstrated that they had a high likelihood of success. The case before the 9th Circuit, though, was much broader than the others, because it stemmed from a federal judge’s outright halting of the ban.

The court ruling did not affect one part of the executive order: the cap of 50,000 refugees to be admitted in the 2017 fiscal year. That is down from the 110,000 ceiling put in place under President Barack Obama. The order also directed the secretary of state and the secretary of homeland security to prioritize refugee claims made by persecuted members of religious minorities.

As of February 9, that means the United States will be allowed to accept only about 16,000 more refugees this fiscal year. Since Oct. 1, the start of the fiscal year, 33,929 refugees have been admitted, 5,179 of them Syrians.

sarah-assaliSarah Assali, 19, left, who just arrived from Syria, is embraced by her brother Tawfik Assali, 21, of Allentown, Pennsylvania, upon her and other family members’ arrival from Syria at Terminal at John F. Kennedy International Airport in New York on February 6, 2017. Attorneys said Dr. Assali’s brothers, their wives and their two teenage children returned to Syria after they were denied entrance to the United States on January 28 although they had visas in hand after a 13-year effort. (Photo: Craig Ruttle/AP).

February 13
A federal judge in Virginia just handed down one of the biggest defeats yet to Donald Trump’s travel ban. Judge Leonie Brinkema issued a preliminary injunction barring enforcement of the ban in Virginia until it can be fully argued out in court. That means it could be weeks or months before overseas travelers are again blocked from coming into the country via Virginia’s international airports.

The case pitted the federal government, represented by lawyers from the Justice Department’s Civil Division, against the Commonwealth of Virginia, represented by State Solicitor General Stuart Raphael and Attorney General Mark Herring.

Unlike temporary restraining orders, preliminary injunctions can become permanent. Some legal experts say the fact that Brinkema has issued this injunction means the Virginia case could potentially reach the Supreme Court before the Washington case—a possibility that reporters brought up to Herring when he held a press conference after the last round of oral arguments in that case on Feb. 10.

In her ruling, Brinkema wrote that it’s likely Virginia will successfully argue that Trump’s travel ban violates the First Amendment. The ruling cited Trump’s interview with Christian Broadcasting Network’s David Brody, where he said his administration would prioritize the asylum claims of Christian refugees over refugees of other religions.

“The ‘Muslim ban’ was a centerpiece of Trump’s campaign for months,” she wrote, “and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered.” And she wrote that just because the travel ban doesn’t impact all Muslims doesn’t mean it isn’t discriminatory.

“[T]he Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise,” she wrote. “It is a discriminatory purpose that matters, no matter how inefficient the execution.”

Trump Travel Ban AtlantaA demonstrator holds a sign at Hartsfield-Jackson International Airport during a demonstration on January 29, 2017, in Atlanta. (Photo: Branden Camp/AP)

February 16
Donald Trump said Thursday that he will issue a new executive order on immigration by next week, and Justice Department lawyers asked a federal appeals court to hold off on taking action in the legal battle over his initial travel ban until that new order is in place.

In a news conference at the White House, Trump said the new order would “comprehensively protect our country,” and he hinted that it might contain new vetting measures for travelers. Trump’s first order temporarily barred citizens of seven Muslim-majority countries and refugees from entering the United States, ostensibly so officials could review and tighten screening procedures.

“Extreme vetting will be put in place, and it already is in place in many places,” Trump said. He said the administration “had to go quicker than we thought” because a federal appeals court refused to lift the suspension on his travel ban.

Trump’s comments and the Justice Department’s request to the U.S. Court of Appeals for the 9th Circuit mean that the administration – at least for now – is pumping the brakes on the furious court battle to restore the travel ban. Instead, the administration indicated in its filing that it expects that a revamped executive order will eliminate judges’ concerns, even those the Justice Department views as unfounded.

Sources: Virginia Judge Blocks Trump’s Travel Ban—Maybe Forever -By Betsy Woodruff | The Daily Beast

Federal Appeals Court Rules 3 to 0 Against Trump on Travel Ban – By Matt Zapotosky | Washington Post

Appeals Court Rejects Request to Immediately Restore Travel Ban -By Mark Lander | New York Times

Trump Promises New Immigration Order as DOJ Holds Off Appeals Court -By Laura Jarrett, Allie Malloy and Dan Merica | CNN

Syrian Family Forced To Return To Middle East After Arriving In Philadelphia | All Things Considered | NPR

Trump’s Executive Order On Immigration, Annotated | NPR

How Trump’s Travel Ban broke from the Normal Executive Order Process -By Kim Soffen and Darla Cameron | Washington Post

Trump’s Immigration Ban: Who Is Barred and Who Is Not -By Anjali Singhvi and Alicia Parlapiano | New York Times