The three judges who wrote this decision have consulted not the law and the Constitution so much as the emotion and sentiments of the media, which have cast the Trump order as a ban on Muslims, which it clearly is not, but a ban on residents of seven nations of the Middle East which the president, and the president before him, concluded were a particular threat to the security of the United States.
Earlier on Friday, he promised to take action “very rapidly” to protect the United States and its citizens in the wake of the appeals court decision, but he did not specify what steps he planned to take. The court also strongly repudiated the government’s claim that a US president’s decisions about immigration policy are not reviewable by the courts even when the decisions allegedly clash with constitutional protections.
Trump, who returned to the White House from Florida on Sunday, tweeted out another defense of his order, citing the seven Muslim countries that would be affected by the order.
Washington State Attorney General Bob Ferguson told ABC on Sunday the current order was “unlawful” and had an “improper motive” because it was meant to discriminate against Muslims. Ferguson said he would also move to depose administration officials.
The 29-page ruling appeared to rule out several of Miller’s suggestions Sunday, saying it was unlikely the White House counsel had authority to amend a presidential executive order and that the government did not show how the order could be administered in parts. It says states can’t sue the US over immigration policy and that foreigners not in America aren’t protected by USA law.
The ruling represented a setback for Trump’s administration and the second legal defeat for the new president in the past week. The appeals court also said the Supreme Court has made it clear that everyone in the US, legally or not, is entitled to due process, or the right to fair procedures before being deprived of freedom or property. Although the fight over the Trump executive order is a battle between the executive branch and the judicial branch of the federal government, that fight may shift right over the United States Senate with the president’s nominee to be on the High Court a referendum on Trump’s refugee policy. “Motive is relevant”, he said.
The order that Trump issued abruptly on January 27 halts resettlement of all refugees for 120 days and that of Syrian refugees indefinitely.
“If you’re allowed to use evidence from the campaign, the state’s case is very strong”, said Griffin.
Past year the Senate Judiciary Subcommittee on Immigration and the National Interest released information showing that at least 60 people born in the seven countries had been convicted – not just arrested, but convicted – of terror-related offenses in the United States since September 11, 2001.
That executive order aiming to end “sanctuary cities” and other unlawful obstructions to immigration law enforcement has not yet been challenged in federal court, but sooner or later, it will be. Why? That action prevented the federal government from barring travelers from seven Muslim-majority nations and suspending, then limiting, the nation’s refugee program.
Legal experts are divided on whether the state’s lawyers should be allowed to question the president’s advisers – and possibly even the president – in depositions. While it can certainly be argued that permanent resident aliens may have certain due process rights before their residency status can be cancelled, the White House has already said the order does not apply to permanent residents.
“And a lot of people agree with us, believe me”, Trump said at a round table discussion with members of the National Sheriff’s Association. But he also reiterated that he was confident of winning the arguments on the Robart ruling.
The president does not necessarily have unreviewable authority over national security.