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.