The Trump administration on Saturday appealed a ruling by a federal judge in Seattle that temporarily blocks a presidential order banning admission to the U.S. from seven predominantly Muslim countries.
The Department of Justice notified the 9th U.S. Court of Appeals that it will appeal the ruling. For a preview of what the government is likely to argue, we can look to Boston, where on Friday another district judge refused to extend an order that prevented the government from enforcing the travel ban.
The ruling, by District judge Nathaniel Gorton, assessed the likelihood that a group of Iranian nationals who were detained for several hours on Jan. 28 upon arrival from abroad at Boston’s Logan International Airport despite having valid visas, can prevail in court on the merits of six arguments against the travel ban.
Equal protection: The plaintiffs, who also include the global anti-poverty group Oxfam, charged that the executive order discriminates against aliens in violation of the Fifth Amendment. “There is a distinction, however, between the constitutional rights enjoyed by aliens who have entered the United States and those who are outside of it,” Gorton wrote in the 21-page ruling. The government’s decision to categorize non-resident aliens as ineligible for entry is entitled to deference by the courts, he said.
Establishment Clause: The plaintiffs lacked standing to challenge the law under the First Amendment’s Establishment Clause, which prohibits state sponsorship of religion. Though the group claimed the government’s prioritizing refugee claims by people whose religion is a minority religion in their country favors Christianity over Islam, the plaintiffs are not refugees, and therefore failed to show the type of concrete injury required to pursue a claim in federal court.
Due Process: The court rejected the plaintiffs’ challenge to the government’s refusal to admit them as a violation of the Fifth Amendment prohibition depriving someone of a legally protected interest without due process of law. “There is no constitutionally protected interest in either obtaining or continuing a visa,” Gorton wrote, noting that the plaintiffs would have a right to due process if the government initiated deportation proceedings against them.
Administrative Procedure Act: Federal law guards against rules put together sloppily, as the plaintiffs charged the administration did with the executive order. But the presidency is not an “agency” for purposes of the Administrative Procedure Act, said Gorton.
First Amendment: Oxfam did not demonstrate a likelihood of success with respect to its claim that the executive order violates the group’s First Amendment rights, Gorton said.
Potential for harm: Though the plaintiffs face the prospect of staying in the country out of fear that reentry “could prove difficult… there are public interest considerations on both sides,” Gorton wrote. “The public interest in safety and security in this ever-more dangerous world is strong as well,” said Gorton.
Gorton seemed inclined to defer to the government’s claim that the travel ban will help to protect the country, despite the government’s failure to tie visa holders from the seven countries at issue to terrorism.
The American Civil Liberties Union, which represents many of the plaintiffs, vowed to “keep fighting to permanently dismantle this un-American executive order.”