- The Washington Times - Thursday, February 9, 2017

A federal appeals court ruled Thursday that President Trump’s extreme vetting executive order is likely illegal, upholding a temporary restraining order that has halted most of the president’s plan and delivering the first serious legal setback of the administration.

The 9th U.S. Circuit Court of Appeals said the administration bungled the writing of the Jan. 27 executive order by making it too broad and then botched the legal defense in court by failing to back up a number of its claims of expansive presidential powers in the area of national security.

In a unanimous ruling, the judges said that courts must serve as a check on the president, even when he is exercising his national security powers, and that the hassle his order would have caused to citizens, immigrants — both legal and illegal — and their relatives abroad was too much to stomach.

On the other hand, halting the extreme vetting policy while the courts sort out matters wouldn’t harm the government, the judges said.

“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 9th Circuit panel wrote.

Mr. Trump’s reaction to the ruling was almost immediate.

“See you in court, the security of our nation is at stake!” he wrote in all capital letters on his Twitter account within a half-hour of the court’s ruling.

The Justice Department wouldn’t tip its legal strategy Thursday and declined to say what Mr. Trump’s tweet meant. A spokeswoman would say only that the department “is reviewing the decision and considering its options.”

The ruling maintains a temporary restraining order imposed by a lower-court judge last week, meaning Mr. Trump cannot carry out most of his policy.
The order halted for 90 days visitors from Iran, Iraq, Yemen, Somalia, Syria, Sudan and Libya. It also paused the U.S. refugee program for 120 days. Both delays were intended to give the government a chance to improve vetting procedures, officials said.

Some 60,000 visas were canceled and more than 1,000 people were blocked from getting on planes to travel to the U.S. after the order went into effect.

A number of legal challenges were filed, and the Trump administration quickly issued guidance calling for the admittance of green card holders, signifying legal permanent residence, and Iraqis traveling on visas issued in exchange for their help to the U.S. war effort.

Even after those clarifications, the states of Washington and Minnesota filed a lawsuit in Seattle arguing that most of the policy was illegal.

In defending the order, the Trump administration argued that the courts shouldn’t second-guess the president’s national security decisions, particularly in the area of immigration.

But the 9th Circuit panel — which consisted of 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 — shot down that claim.

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the judges wrote.

Trump attorneys also said nobody outside the U.S. has a right to a visa.
But Judge James L. Robart, who issued the temporary restraining order Friday, and the 9th Circuit disagreed.

The appeals court said illegal immigrants in the U.S. have some rights, as do relatives living inside the U.S., to facilitate the travel of their families living outside the country. The court also declined to narrow the scope of Judge Robart’s ruling so that it would not apply to those who have never been to the U.S.

“There might be persons covered by the [temporary restraining order] who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do,” the judges wrote.

The appellate judges said Mr. Trump botched the order on the whole by writing it so broadly and that it wasn’t their job to rewrite the order to make it legal.
An attempt by Mr. Trump’s attorneys to try to clarify his ruling by exempting green card holders was also rejected. The court said it “seems unlikely” that the White House counsel could legally amend or supersede an executive order signed by the president.

The appellate judges noted their own analysis of the case was preliminary and said they would save for later the debate over whether Mr. Trump’s policy amounts to the “Muslim ban” he promised during the campaign — which, if true, would be an unconstitutional infringement on religion, immigrant rights advocates said.

“In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed,” the judges wrote.

The case has already been scheduled for a fuller hearing in March. But if the Trump administration appeals this ruling in the meantime, it could seek either an en banc hearing before the full 9th Circuit or take the case to the Supreme Court.

Even without a clear understanding of how the Trump administration would handle the case, observers were quick to react to the ruling.

Immigrant rights advocates cheered it, saying the court stood up for refugees and immigrants.

“The government’s erratic and chaotic attempts to enforce this unconstitutional ban have taken a tremendous toll on innocent individuals, our country’s values, and our standing in the world,” said Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project.

Conservatives, though, said the decision was misguided and potentially dangerous.

“No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national security decisions of the president,” said Sen. Tom Cotton, Arkansas Republican. “This misguided ruling is from the 9th Circuit, the most notoriously left-wing court in America and the most reversed court at the Supreme Court. I’m confident the administration’s position will ultimately prevail.”

The seven countries singled out in the policy were not chosen by Mr. Trump. They were based on a 2015 law enacted by Congress and a 2016 determination by the Obama administration that those countries didn’t have enough infrastructure or cooperation with the U.S. for American officials to trust that the people coming from there were who they said they were.

“I’m at a total loss to understand how we can vet people from various countries when in at least four of those countries we don’t even have an embassy,” Homeland Security Secretary John F. Kelly told Congress this week, defending the executive order.

Thursday’s ruling contrasts with a federal district judge in Boston, who upheld the Trump policy in a decision last week.

That judge ruled that Congress had clearly given the president the power to exclude aliens and said foreigners do not have a right to demand a visa.
“Thus, because an alien does not enjoy a property right in a visa, he has no due process right that protects the manner in which a visa is revoked,” Judge Nathaniel M. Gorton wrote in his opinion.

Mr. Trump this week urged other courts to look to at that ruling.

He also said he listened to oral arguments at the 9th Circuit and was dismayed, saying they strayed far from his focus on keeping the country safe from the threats he sees.

“I listened to lawyers on both sides last night, and they were talking about things that had just nothing to do with it,” he told a law enforcement gathering Wednesday.

Polling on the extreme vetting policy has been confusing. One poll taken by Morning Consult this week showed a clear majority — 54 percent — in favor of the temporary ban on visitors from the seven suspect countries, while a CBS News poll found a majority — 51 percent — to be opposed. A CNN poll put opposition at 53 percent.

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