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Law

The Trump travel ban lacks a rational basis

In his ruling upholding the president’s order banning admission to the U.S. by people from seven predominantly Muslim countries, District judge Nathaniel Gorton in Boston deferred to the chief executive’s authority over immigration.

But as the arguments in court that led Judge James Robart in Seattle to temporarily suspend the travel ban suggest, the government may struggle to persuade an appeals court that the executive order bears any fair relationship to the goal of protecting Americans “from terrorist attacks by foreign nationals” admitted to the U.S.

Here Robart asks Michelle Bennett, a lawyer for the Department of Justice, how many arrests of foreign nationals from the seven countries there have been since 9/11.

“Your Honor, I don’t have that information,” Bennett answered. “I’m from the civil division if that helps get me off the hook.”

“Let me tell you,” Robart replied. “The answer to that is none, as best I can tell. So, I mean, you’re here arguing on behalf of someone that says, we have to protect the United States from these individuals coming from these countries, and there’s no support for that.”

“Your Honor, I think the point is that because this is a question of foreign affairs, because this is an area where Congress has delegated authority to the President to make these determinations, it’s the President that gets to make the determinations,” Bennett answered. “And the court doesn’t have authority to look behind those determinations.”

Even if the White House is entitled to deference, the 9th Circuit U.S. Court of Appeals may ask, as Robart did, what tie, if any, the executive order has to the goal of protecting Americans.

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Law

Appeals court rejects White House request to immediately reinstate Trump travel ban

The 9th U.S. Circuit Court of Appeals on Saturday denied a request by the White House to immediately reinstate a ban on travel to the U.S. by people from seven predominantly Muslim countries.

The ruling means that an order by District judge James Robart in Seattle that blocks enforcement of the ban nationwide will remain in effect until the 9th Circuit considers the government’s appeal.

Briefs opposing the government’s request to set aside the ruling by Robart are due Sunday, with a reply by the government due Monday by 3 p.m. Pacific time.

The office of Washington State Attorney General Bob Ferguson, who sued to block the travel ban, is posting legal documents in the case here.

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Law

Boston judge’s ruling unblocking Trump travel ban highlights arguments the White House is likely to make on appeal

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.”

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Law

Trump travel ban blocked temporarily by judge in Seattle

A federal judge in Seattle has temporarily blocked an executive order that bars admission to the U.S. for refugees and people from seven majority-Muslim countries.

The order “adversely affects the states’ residents in areas of employment, education business, family relations and freedom to travel,” U.S. District Judge James Robart wrote in a ruling issued Friday in a lawsuit filed by the states of Washington and Minnesota.

“In addition, the states themselves are harmed by virtue of the damage that implementation of the executive order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the states’ operations, tax bases, and public funds,” Robart added.

The ruling, which applies nationwide, will remain in effect until lawyers for the government have an opportunity to argue why it should be lifted. Airlines said late Friday they would permit passengers from the seven countries who hold valid visas or green cards to board flights to the U.S.

The government has voided as many as 60,000 visas since Jan 27, when the president signed the order.

“We are a nation of laws,” Washington State Attorney General Bob Ferguson told reporters after the ruling. “I’m certain the president will not like this decision, but it is his job, it is his responsibility, it is his obligation as our president to honor it and I’ll make sure he does.”

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Law

‘It’s a beheading of democracy, a beheading of a sacred symbol’

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