AMP Report - February 10, 2017

US Court of Appeals rejects to reinstate Trump's Muslim travel ban

A three-judge panel from the 9th U.S. Circuit Court of Appeals in San Francisco on Thursday, February 9, 2017 unanimously upheld a lower court’s order blocking the Trump administration from enforcing its immigration and refugee order.

The panel decisively rejected the Justice Department’s arguments against the restraining order. “We hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay,” the three judges wrote in their 29-page decision.

President Trump responded to the ruling with a cryptic, two-line message on Twitter.

On Wednesday, Feb. 8, Trump read a law that gives the president authority to stop the entry of “any class” of foreigner. "You can suspend, you can put restrictions, you can do whatever you want," Trump told a conference of police chiefs and sheriffs in Washington. "It just can’t be written any plainer or better."

The Court of Appeals said that the president's claim of ultimate authority over foreign policy was inadequate. "Although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action," they said.

The judges found that the plaintiffs in the case -- the states of Washington and Minnesota -- had shown that the order may have violated the due process rights of foreigners who had valid visas and green cards. They also noted the "serious nature" of the religious discrimination claims made by the plaintiffs, but did not rule on that issue.

The unanimous verdict said courts have a duty “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty.”  "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," said the court in its decision.

Justice Department lawyers also argued that the ban no longer applied to green-card holders — citing guidance from the White House counsel issued after the ban took effect — and that challenges on those grounds should thus be invalidated. On that, too, the judges disagreed.

“The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments,” the judges wrote. “Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”

According to the Atlantic, while much of the discussion centered around the ban’s constitutionality, the judges largely sidestepped its legal and constitutional merits. Instead, the panel’s ruling focused on whether Judge Robart’s temporary restraining order, which blocked the federal government from enforcing key parts of the executive order while legal proceedings continue, was justified.

“The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” the panel wrote. “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.” “We disagree,” they added.

Judge James Robart

Trump's ban, announced Jan. 27, temporarily barred citizens of Iraq, Iran, Libya, Somalia, Sudan and Yemen for 90 days, all refugees for 120 days, and Syrian citizens indefinitely. It led to chaos at U.S. and international airports as tens of thousands of visa holders were blocked from entering the country or detained after arriving in the U.S.

A barrage of protests and lawsuits followed, leading to federal court rulings against the ban in New York, Virginia and elsewhere. One judge in Massachusetts later ruled in Trump's favor, but on Friday, February 3,  District Judge James Robart in Seattle halted the policy nationwide, citing "immediate and irreparable injury" to foreigners with valid visas and green cards.

Judge James Robart, who was nominated by President George W. Bush in 2004, issued the temporary restraining order on Friday to block the ban’s enforcement nationwide pending further hearings. Robart is one of several federal judges who has blocked parts of the executive order since its announcement on January 27. But his temporary injunction was the most sweeping one yet issued by a judge, effectively negating the order’s core functions. The following day, the State Department and Department of Homeland Security said they would abide by the judge’s order and roll back their enforcement of the ban.

Opponents of the travel ban, led by Washington state and Minnesota and including nearly 20 other states, former national security officials and leading technology companies, say the ban discriminates against citizens of certain countries and the Muslim religion. They point to a 1965 law that prohibits discrimination against immigrants based on their country of origin, and claim the ban violates the establishment clause of the Constitution that protects freedom of religion.

Bloomberg News said: The San Francisco-based appeals court on Thursday spurned the government’s request to close the doors after days of public debate over President Donald Trump’s attacks on the judicial system and a rush of fearful immigrants. The ruling increases the likelihood that the administration will ask the Supreme Court to step into a case that’s the biggest test of Trump’s executive power yet.... The panel’s ruling in favor of immigrants is a victory not only for Washington and Minnesota -- the states that sued -- but for Facebook Inc., Google Inc. and Microsoft Corp., which said in court papers that the measure would hinder their global businesses.

The USA Today said: The quick decision from a three-judge panel of the U.S. Court of Appeals for the 9th Circuit could lead to a showdown at the Supreme Court within days, unless the administration dials back the travel ban or agrees to try its case before the federal judge in Seattle who ordered it blocked last week.

The Los Angeles Times said: The appellate court repudiation of President Trump’s travel ban marked the first high level loss for a new administration that, for all the chaos it has inflicted on Washington and itself, had thus far largely succeeded in accomplishing its goals.

CNN: President Donald Trump suffered more than a legal defeat of his immigration ban Thursday night. He ran smack into the limits of executive power.

Trump considers writing ‘brand new’ immigration order; Washington Post

President Trump said Friday (Feb. 10) that he is considering rewriting his executive order temporarily barring refugees and citizens of seven Muslim-majority countries from entering the country, indicating that the administration may try to quickly restore some aspects of the now-frozen travel ban or replace it with other face-saving measures.

Trump told reporters aboard Air Force One that he would probably wait until Monday or Tuesday to take any action, and White House chief of staff Reince Priebus said several options — including taking the case to the Supreme Court — were still on the table.

Trump hinted that the ongoing legal wrangling might move too slowly for his taste, though he thought he would ultimately prevail in court.  “We will win that battle,” he said. “The unfortunate part is that it takes time statutorily, but we will win that battle. We also have a lot of other options, including just filing a brand-new order.” He said among the revisions he might make are “new security measures.”

Here under are headlines of major US media about the Appeals Court rejection:

USA Today: Appeals court refuses to reinstate Trump's travel ban
New York Times: Court Refuses to Reinstate Travel Ban, Dealing Trump Another Legal Loss
Washington Post:
Federal appeals court rules 3 to 0 against Trump on travel ban
The Wall Street Journal: Court Ruling Curbs Trump’s Powers
Trump finds the limits of executive power
The Atlantic: Federal Judges Refuse to Reinstate Trump's Immigration Ban
Bloomberg: Trump Dealt Major Setback as Appeals Court Sides With Immigrants
US appeals court won't reinstate Trump's immigration travel ban
Los Angeles Times: Appeals court ruling was the biggest warning to Trump yet on how he's approaching the presidency

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Executive Editor: Abdus Sattar Ghazali


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