A U.S. federal appeals court will hear arguments on Tuesday over whether to restore President Donald Trump’s temporary travel ban on people from seven Muslim-majority countries, the most controversial policy of his two-week-old administration.
In a brief filed on Monday, the Justice Department said last week’s suspension of Trump’s order by a federal judge was too broad and “at most” should be limited to people who were already granted entry to the country and were temporarily abroad, or to those who want to leave and return to the United States.
That language did not appear in the government’s opening brief filed at the 9th U.S. Circuit Court of Appeals and could represent a softening of its position.
Last Friday’s ruling by U.S. District Judge James Robart in Seattle suspending the travel ban opened a window for people from the seven affected countries to enter.
The 9th Circuit in San Francisco on Monday asked lawyers for the states of Washington and Minnesota and the Justice Department to argue whether the ban should remain shelved. The court set oral argument for 3 p.m. PST on Tuesday.
The new Republican president has said the travel measures are to protect the country against the threat of terrorism. Opponents say the 90-day ban is illegal, barring entry for citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen and imposing a 120-day halt to all refugees.
National security veterans, major U.S. technology companies and law enforcement officials from more than a dozen states backed a legal effort against the ban.
The case may ultimately reach the U.S. Supreme Court.
Ten former U.S. national security and foreign policy officials, who served under both Republican and Democratic presidents, filed a declaration in the court case arguing that the travel ban served no national security purposes.
It was signed by former Secretaries of State John Kerry and Madeleine Albright, former national security adviser Susan Rice and former CIA Directors Michael Hayden and Michael Morell.
Over the weekend, the San Francisco court denied the administration’s request for an immediate suspension of the federal judge’s temporary restraining order that blocked the implementation of key parts of the travel ban while it considered the government’s request in full.
The court did say it would consider the government’s request after receiving more information.
Trump has reacted to challenges to the ban by attacking the federal judge in Seattle and then the wider court system.
On a visit on Monday to the military’s Central Command headquarters in Tampa, Florida, Trump defended his order.
“Terrorists are determined to strike our homeland as they did on 9/11,” he said. “We need strong programs for people who love our country,” Trump said, adding he did not want to allow “people who want to destroy us and destroy our country” into the United States.
STATE OFFICIALS OPPOSE BAN
Opponents of the ban received far more filings in support of their position than the Justice Department. Washington State’s challenge was backed by about a dozen friends-of-the-court briefs submitted by at least 17 state attorneys general, more than 100 companies and about a dozen labour and civil rights groups. About a dozen conservative groups supported the government in three such briefs.
“President Trump’s executive order is unconstitutional, unlawful, and fundamentally un-American – and we won’t stand by while it undermines our states’ families, economies, and institutions,” said New York Democratic Attorney General Eric Schneiderman.
Top technology companies, including Apple Inc, Google Inc and Microsoft Corp were among the corporations that filed a similar brief on Sunday with the appeals court, arguing the travel ban “inflicts significant harm on American business, innovation, and growth.”
Elon Musk’s energy products company Tesla Inc and SpaceX joined the brief on Monday.
Trump faces an uphill battle in the San Francisco court, which is dominated by liberal-leaning judges. Appeals courts are generally leery of upending the status quo, which in this case is the lower court’s suspension of the ban.
The appeals court was focusing on the narrow question of whether the district court had grounds to put the order on hold. The bigger legal fight over whether Trump had authority to issue the order will be addressed later in the litigation.
Curbing entry to the United States as a national security measure was a central premise of Trump’s campaign, originally proposed as a temporary ban on all Muslims.
U.S. presidents have in the past claimed sweeping powers to fight terrorism, but individuals, states and civil rights groups challenging the ban said his administration had offered no evidence it answered a threat.
The New America think tank said all of the people who had carried out fatal attacks inspired by Islamist militancy in the United States since Sept. 11, 2001, attacks had been U.S. citizens or legal residents. None of those attackers emigrated or came from a family that emigrated from one of the countries listed in the travel ban.
Trump, who took office on Jan. 20, has vented his frustration over the legal challenges with a volley of attacks on the judiciary.
He derided Robart as a “so-called judge.” On Sunday, he broadened his Twitter attacks on Robart, who was appointed by former Republican President George W. Bush, to include the “court system.”
“Just cannot believe a judge would put our country in such peril,” Trump tweeted. “If something happens to blame him and the court system.”
It is unusual for a sitting president to attack a member of the judiciary, which the U.S. Constitution designates as a check on the power of the presidency and Congress. Democrats seized on Trump’s remarks to raise questions about how independent his Supreme Court nominee, Neil Gorsuch, might be.
