A federal appeals court upheld a temporary restraining order blocking President Trump’s extreme vetting policy Thursday night, delivering another legal setback for the new administration.
A federal appeals court ruled Thursday that President Trump’s extreme vetting executive order is likely illegal, upholding a temporary restraining order that’s halted most of the president’s plan and delivering the first serious legal setback of the new administration.
The 9th U. S. Circuit Court of Appeals said the administration bungled the writing of the Jan. 27 executive order by making it too broad, and then botched the legal defense in court, failing to back up a number of its claims of expansive presidential powers in the area of national security.
In a unanimous ruling the judges said that courts must serve as a check on the president, even when he claims to be acting under his national security powers, and said the hassle his order would have caused to citizens, immigrants — both legal and illegal — and to their relatives still living overseas was too much to stomach.
SEE ALSO: 77% of refugees allowed into U. S. since travel reprieve hail from seven suspect countries
On the other hand, halting the extreme vetting policy while the courts sort everything out further wouldn’t harm the government, the judges said.
“The government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay,” the judges said in an unsigned opinion.
Mr. Trump fired back on Twitter: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
The Justice Department wouldn’t tip its legal strategy Thursday, and declined to say what Mr. Trump’s tweet meant. A spokeswoman would only say the department “is reviewing the decision and considering its options.”
Thursday’s ruling maintains a temporary restraining order imposed by a lower-court judge last week, meaning Mr. Trump cannot carry out most of his policy.
But it’s not the last word. The judges already set a schedule for a more full hearing of the case in March, and an appeal is also possible.
Immigrant-rights advocates cheered the ruling, saying the court stood up for refugees and immigrants.
“The government’s erratic and chaotic attempts to enforce this unconstitutional ban have taken a tremendous toll on innocent individuals, our country’s values, and our standing in the world,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project.
Conservatives, though, said the decision was misguided and potentially dangerous.
“No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president,” said Sen. Tom Cotton, Arkansas Republican. “This misguided ruling is from the Ninth Circuit, the most notoriously left-wing court in America and the most reversed court at the Supreme Court. I’m confident the administration’s position will ultimately prevail.”
Mr. Trump’s order halted for 90 days visitors from Iran, Iraq, Yemen, Somalia, Syria, Sudan and Libya. It also paused the U. S. refugee program for 120 days. Both delays were intended to give the government a chance to improve vetting procedures, officials said.
The seven countries singled out in the policy were not Mr. Trump’s picks. They were based on a 2015 law passed by Congress, and a 2016 determination by the Obama administration that those countries didn’t have enough infrastructure or cooperation with the U. S. for American officials to trust that the people coming from there were who they said they were.
“I’m at a total loss to understand how we can vet people from various countries when in at least four of those countries we don’t even have an embassy,” Homeland Security Secretary John F. Kelly told Congress earlier this week, defending the executive order.
Some 60,000 visas were canceled and more than 1,000 people were blocked from getting on planes to travel to the U. S. after the order went into effect.
A number of legal challenges were filed, and the Trump administration quickly issued guidance saying that green card holders, signifying legal permanent residency, and Iraqis traveling on visas issued because of their help to the U. S. war effort should be admitted.
Even after those clarifications, the states of Washington and Minnesota filed a lawsuit in Seattle arguing most of the policy was illegal.
Late last Friday, Judge James L. Robart issued a temporary restraining order putting most of the policy on hold.
The Trump administration had argued that the president’s national security decisions, particularly in the area of immigration, shouldn’t be second-guessed by the courts.
But the 9th Circuit panel shot down that claim.
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the judges wrote.
Trump lawyers also said nobody outside the U. S. has a right to a visa.
But both Judge Robart and the 9th Circuit disagreed. The appeals court said illegal immigrants in the U. S. have some rights, as do relatives living inside the U. S. to facilitate the travel of their families still living outside the country.
The appellate judges said Mr. Trump botched the matter by writing such a broad order in the first place, and said it wasn’t their job to rewrite the order to make it legal.
The judges also rejected Mr. Trump’s attempt to have his lawyers try to clarify his ruling by exempting green card holders. The court said it “seems unlikely” that the White House counsel could legally amend or supersede an executive order signed by the president.
The appellate judges said they would save for later the debate over whether Mr. Trump’s policy amounts to the “Muslim ban” he promised during the campaign — which, if true, would be an unconstitutional infringement on religion, immigrant-rights advocates said.
Thursday’s ruling contrasts with a federal district judge in Boston, who upheld the Trump policy in a ruling last week.
That judge ruled that Congress had clearly given the president the power to exclude aliens, and said foreigners do not have a right to demand a visa.
“Thus, because an alien does not enjoy a property right in a visa, he has no due process right that protects the manner in which a visa is revoked,” Judge Nathaniel M. Gorton wrote in his opinion.
Mr. Trump this week urged other courts to look to that ruling.
He also said he listened to the oral argument at the 9th Circuit and was dismayed, saying the arguments strayed far from his focus on keeping the country safe from the threats he sees.
“I listened to lawyers on both sides last night and they were talking about things that had just nothing to do with it,” he told a law enforcement gathering on Wednesday.
Polling on the extreme vetting policy has been confusing. One poll taken by Morning Consult this week showed a clear majority — 54 percent — in favor of the temporary ban on visitors from the seven suspect countries, while a CBS News poll found a majority — 51 percent — to be opposed. A CNN poll put opposition at 53 percent.
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