- The Washington Times - Monday, February 6, 2017

The White House said it is “absolutely not” backing down on President Trump’s extreme vetting executive order as Justice Department attorneys asked an appeals court Monday to lift a restraining order that left the policy in limbo and sparked a major test of the new administration’s powers.

Administration attorneys said Mr. Trump was acting within his national security and immigration powers when he imposed temporary halts on the U.S. refugee program and on visitors from seven majority-Muslim countries.

They said the president has broad authority to decide whom to admit and whom to bar from the country, and the State Department can cancel visas at any time.

“An alien outside the United States has no substantive right or basis for judicial review in the denial of a visa at all,” the attorneys said. “Moreover, Congress has been clear that the issuance of a visa to an alien does not confer upon that alien any right of admission into the United States.”

The attorneys were trying to kick-start Mr. Trump’s policy, which was put on hold late Friday by a federal judge in Seattle. The case now has been elevated to the 9th U.S. Circuit Court of Appeals, which kept the Seattle court’s restraining order in place even as a three-judge appellate panel sets a speedy schedule for considering the case.



With the administration’s briefs being filed Monday, the appeals court said it will hear oral arguments by phone Tuesday.

In the meantime, people who had been denied entry in the wake of the executive order streamed into the U.S. with the aid of immigrant rights groups.

Two Yemeni men, 21-year-old Tareq Aziz and 19-year-old Ammar Aziz, arrived Monday at Washington Dulles International Airport to reunite with their father, a U.S. citizen who lives in Michigan.

The two green card holders first arrived in the U.S. on Jan. 28, the day after Mr. Trump signed his executive order, but were refused entry and were coerced to sign forms withdrawing their applications to enter the country, their attorneys said. The Trump administration later clarified its order to say that green card holders were exempt from the ban.

“Thank you every single person who tried to help me bring my kids back,” their father, Aqel Aziz, said during a press conference Monday at the airport. “America is for everybody.”

The Trump administration, which struggled in the initial rollout of the policy, is still struggling to detail where things stand. The State Department provisionally revoked approximately 60,000 visas as a result of Mr. Trump’s executive order but reinstated them after the Seattle judge’s ruling. The most recent statistics from U.S. Customs and Border Protection date back to Feb. 2, which was before the courts got deeply involved.

Still, the White House was expressing confidence Monday that it would prevail and reimpose the policy.

“Once we win the case, it will go right back into action,” press secretary Sean Spicer said.

Washington and Minnesota sued last week to halt the vetting policy, saying it harmed residents, businesses and public institutions within their boundaries.

Judge James L. Robart, a Republican appointee to the bench, sided with the states and issued a temporary restraining order on Mr. Trump — though he didn’t detail his legal reasoning.

Trump attorneys, in their filing Monday, said national security is at stake. They said Mr. Trump made a judgment that screening procedures weren’t good enough to keep out potential terrorists and that the pause gave the government a chance to improve its vetting.

“The potential national-security risks and harms resulting from the compelled application of procedures that the president has determined must be re-examined, for the purpose of ensuring an adequate measure of protection for the nation, cannot be undone. Nor can the effect on our constitutional separation of powers,” the attorneys said.

The halt on visitors from Iran, Iraq, Syria, Somalia, Sudan, Libya and Yemen was scheduled to expire in 90 days, and the halt on refugees was to last 120 days. The one exception is Syrian refugees, who are blocked indefinitely.

Even if some states are harmed by the vetting policy, the administration attorneys said, Judge Robart’s ruling should have been limited only to states that complained.

The panel of judges set to hear arguments and consider whether to keep the executive order on hold are William Canby Jr., an appointee of President Carter; Richard Clifton, an appointee of President George W. Bush; and Michelle T. Friedland, an appointee of President Obama.

The panel could take one of two tracks, said lawyer Ben Feuer, chairman of the California Appellate Law Group and a former clerk on the circuit.

The court could delve further into the merits of the arguments than Judge Robart did, or the panel could take a minimal and technical approach and keep its opinion narrow to address the question of whether the executive order should be put on hold while the lower court goes through the lengthy process of deciding the case.

“The trial court didn’t explain why the plaintiffs are likely to prevail on the merits,” Mr. Feuer said. “That is sort of a tough procedural position to go on for the appeals court because the trial court isn’t clear.”

Either way, he expects the court to rule quickly on the matter — likely within the next several days.

The case has become a major test of the extent of presidential powers when it comes to immigration. It’s also serving as an early test for the political forces vowing to resist Mr. Trump, many of whom have filed briefs in the case siding with opponents of the president.

Ten former top U.S. security officials and diplomats called the executive order an “ill-conceived, poorly implemented and ill-explained” plan that “could do long-term damage” to American national security and foreign policy interests.

The ban could harm American interests by endangering U.S. troops abroad, serving as a recruitment tool for the Islamic State and undermining relationships between American Muslim communities and local law enforcement, wrote the former officials.

The 10 signatories — most of them political appointees of Democratic presidents — were Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta and Susan E. Rice.

Meanwhile, attorneys general from 15 states and the District of Columbia filed an amicus brief in opposition, arguing that the order harmed businesses, tourism, medical institutions and universities.

In one example highlighted in the brief, the attorneys general wrote that nearly 1,000 citizens from the affected countries were studying in New York on temporary visas in 2015 and collectively contributed $30.4 million — through tuition payments and living expenses — to the state’s economy.

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