On Monday evening, a Federal Appeals Court announced that the legal showdown with the Trump Administration will take place on Tuesday evening around 6pm, when the 9th U.S. Circuit Court of Appeals will hear oral arguments on whether to restore President Trump’s executive action on immigration and refugees. Oral arguments will be made by phone, with each side getting 30 minutes of argument time. A recording of the call will be made public after the hearing.
At around the same time, the Justice Department filed a brief with the Court of Appeals in support of President Donald Trump’s travel and refugee ban. The filing said the Trump administration executive order that bans travelers from seven nations is a “lawful exercise” of presidential authority. A federal judge in Washington state put the order on hold Friday.
“The court’s sweeping nationwide injunction is vastly overbroad,” the administration said of a Seattle judge’s ruling Friday that halted PresidentDonald Trump’s plan. After the filing, a three-judge panel of the appeals court scheduled a hearing by phone for Tuesday at 3 p.m. in San Francisco.
As Bloomberg recaps, since the Seattle judge’s ruling, refugees and travelers have been rushing to the U.S. before another legal turn closes the door. The 11 days since Trump’s Jan. 27 executive order have been chaotic as travelers were initially stranded at airports, protests raged worldwide and a litany of lawsuits were filed across the country. “Companies, universities, citizens and refugees have sought relief from the courts in crucial tests of the president’s unilateral ability to decide who threatens the nation.”
The question before the federal appeals panel in San Francisco is narrow, springing from a case brought by Washington and Minnesota, which argued that the ban was unconstitutional and that their economies were being harmed. U.S. District Judge James Robart in Seattle temporarily halted Trump’s ban on Friday. The Justice Department seeks to void that order. The loser is likely to appeal to the U.S. Supreme Court.
If the Trump administration loses its appeal, the case will go back to the Seattle court, where Robart would weigh whether to reject the ban on a longer-term basis. The administration reiterated that Congress has granted the president “broad discretion to suspend the entry of any class of alien into the country.” It also argued that an alien outside the U.S. has no substantive right for a judicial review of a denial of a visa. Nor, do the states have a right to act on their behalf, government lawyers said.
The order doesn’t violate the Constitutional rights of lawful permanent residents, the government argued. The executive order is “neutral with respect to religion,” it said.
If the government fails to persuade the appeals court to block the order, it might petition the Supreme Court to intervene. Five of the eight justices would be needed to reverse that decision. However, Kathleen Kim, a professor at Loyola Law School in Los Angeles said “I think it’s unlikely this makes it to the Supreme Court,” adding “I believe that if the Supreme Court wants to maintain its integrity as a majoritarian body serving as a legitimate system for checks and balances, it will not consider an appeal.”
That would leave the merits of the arguments to be debated in a Seattle courtroom, with the case and perhaps others making their way to the top court for review in months or even years – especially if appeals courts issue conflicting rulings on whether it’s legal. The immigration case has already cropped up in the confirmation process for Supreme Court nominee Neil Gorsuch, with Democrats questioning whether he would be able to check Trump’s exercise of executive power. Gorsuch, a conservative who favors originalism when interpreting the Constitution, could be the tie-breaking vote on the currently split court.