Much of the wrangling to come at a hearing Tuesday before an appeals court in San Francisco that will decide whether to reinstate a presidential ban on admission to the U.S. by people from seven majority-Muslim countries is expected to focus on procedure.
Washington state, which together with Minnesota accuses the administration of pushing through an unconstitutional order that upends well-settled immigration policy, is asking the 9th Circuit Court of Appeals to leave in place a decision by District judge James Robart in Seattle that temporarily blocks enforcement of the ban nationwide.
The Trump administration, in papers filed on Monday with panel, counters that Robart abused his discretion by “second-guessing a formal national-security judgment made by the president himself pursuant to broad grants of statutory authority.”
If the Ninth Circuit sides with the states, it could send the case back to Robart for a trial, which would leave the travel ban in abeyance. The panel has scheduled oral argument, which will take place by telephone, for 3 p.m. Pacific time on Tuesday. The arguments will be live-streamed via the court’s website.
Should arguments advance to the merits of the matter, here’s a rundown of the main points briefed on appeal by each side.
Standing: The federal government says that states lack authority to sue as representatives of their citizens. The states counter that the executive order harms their public universities by stranding university students and faculty, as well as by cutting into state tax revenue.
Due process: Aliens outside the U.S. “have no right or interest in their admission” that is protected by the Fifth Amendment’s Due Process clause. The states charge that resident aliens who travel abroad only to find themselves at risk of being deported if they attempt to reenter the country violates due process.
Establishment Clause: The travel ban is not government sponsorship of religion the administration asserts, noting that the order’s prioritizing refugee claims by members of persecuted minority religions “applies to all religious minorities seeking refugee status…” The states charge that the order explicitly distinguishes between members of religious faiths, noting that the president has said that one purpose of the order is to favor Christian refugees at the expense of Muslims.
Equal protection: The government says the executive order blocks refugees from all countries, not just the seven majority-Muslim countries (italics in original), and that the order temporarily suspends entry of aliens from seven countries previously identified by Congress and the executive branch “as raising heightened terrorism-related concerns.” The states counter that the intent of the order is to discriminate against Muslims, adding that while the government cites the 9/11 attacks as a rationale, “it imposes no restrictions on people from the countries whose nationals carries out those attacks.”
Immigration law: Congress has granted the president “broad discretion” to suspend entry of “any class of aliens” into the U.S., the government argues. The states counter that such discretion is subject to review, and that until now, “no president has invoked [the immigration law] to impose a categorical bar on admission based on a generalized (and unsupported) claim that some members of a class might engage in misconduct (italics in original).
A decision whether to reinstate the ban could come relatively quickly. Though either side could ask the Supreme Court to review the ruling, that current 4-4 split between liberals and conservatives on that panel means the appeals court ruling is likely to stand for some time.