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Lawyers for the federal government and the states of Washington and Minnesota will face off in tribunal on Tuesdayfor what is likely to become the biggest test President Donald Trumphas considered yet for his executive order restricting immigration and refugee resettlement from predominantly Muslim countries.
There are several similar challengesin federal courts across the country. But at least for now, all eyes will be on the San Francisco-based U.S. Court of Appeals for the 9th Circuit, which is scheduled to hear oral arguments and stream them live on its websitestarting at 6 p. m. Eastern time.
Why does this particular legal challenge matter above all the others? Below are some common questions and answers about it.
The case came to the 9th Circuit as an emergency motionby the Trump administration, which requested that the court put on hold a lower-court ruling that effectively blockedthe executive order nationwide.
That ruling, by U.S. District Judge James Robart a George W. Bush appointee who Trump has since targeted withangry tweets did not pass judgment on the ultimate legality of the travel forbid. Instead, it was styled as an interim restraining order, and all the appeals court needs to decide at this stage is whether Robart correctly determined the legal criterion for his decision.
This explains why the Department of Justice, in its weekend motion, used words such as likelihood of success on the merits and alluded to chances of irreparable harm to the government: Lawyers for the administration are arguing that Robarts decision is injuring the executive branch and its authority over immigration policy every day that the travel forbidding isnt in place.
Its an debate that some legal observers are calling extreme, and it stands in contrast with the argument that the states of Washington and Minnesota are offering to maintain the freeze on the executive heads order: that its implementation causes irreparable harm to them, their residents and many of the programs the states manage.
Not at this stage. In fact, it is highly likely that the 9th Circuit will simply decide if Robart applied the correct criterion for temporary restraining orders. In pas, the court may mention the larger constitutional questions surrounding the occurrence the scope of presidential power over immigration, or whether the travel ban amounts to religion discrimination or a refusal of equal protection of the laws.
But Robarts ruling was narrow, relatively short, and merely of temporary application even though it essentially ties the federal governments hands while the litigation is ongoing. On that score, the two sides have already proposed a briefing scheduleso that Robart may decide if his ruling should be extended. So expect more tribunal filings, more oral debates, and maybe another televised showdown for that hearing later this month.
( Theres a slight prospect the 9th Circuit will punt altogether and tell DOJ that a temporary restraining order isnt even appealable under court regulations. Which entails the states will win this early round and the 9th Circuit will get a subsequently chance to review whatever Robart does next with the example .)
Several courts in different parts of the country have already blocked or ruled against aspects of Trumps travel ban but merely with respect to a small subset of immigrants and travelers stranded at airports or mid-travel.
Robarts ruling, on the other hand, was more significant because it put the brakes on the executive heads order nationwide all thanks to a theory of legal harm that Republican-led nations deployed effectively during the Obama years: that states as a whole have been suffering of an ill-conceived or illegal federal policy.
Here, Washington and Minnesota successfully quoth that theory of standing to sue the government while arguing they have the right to sue in court to stop the executive order. In fact, Robart mentionedthe very example brought by Texas and 25 other nations against Obamas executive action on immigration for the proposition that immigration laws should be uniform across the country. And that if one state is potentially harmed by the policy, the policy must be put on hold for every state.
Expect the 9th Circuit to address this theory of standing at Tuesdays oral debates. In its legal briefs, the DOJ calls the states damages speculative and hypothetical an debate that, if accepted, might lead to the dismissal of the case.
For a lawsuit at such an early stage in the process, briefs and filings from all corners have poured in before the 9th Circuit most of them supporting the states of Washington and Minnesota.
Perhaps the most significant of them was a declaration attached to a brief from the states that was signed by former national security and intelligence officers who have served under both Democratic and Republican administrations. Their document matters because many of them were intimately familiar with the threats the country faced from terrorist sources. The 9th Circuit could find persuasive their contention that Trump didnt sign the executive order to protect national security, and thus theres no urgency in lifting the hold on the travel outlaw right now.
Others who have weighed inon the controversy include tech companies; a alliance of states led by New York, Pennsylvania and Massachusetts; the American Civil Liberties Union; immigrants rights advocates , legal scholars, labor groupsand other organizations with those who are interested in watching Trumps travel ban repealed altogether.
Also noteworthy: HIAS, one of the worlds oldest refugee relief organizations, alsofiled a brief opposing the executive order. HIAS once helped a judge who now sits on the 9th Circuit resettle in the U.S. with his family after they fled communist Romania.
The three federal magistrates preparing to hear the oral argumentsrepresent a cross-section of the political spectrum.
They are U.S. Circuit Judge William Canby, an appointee of President Jimmy Carter based in Phoenix; U.S. Circuit Judge Richard Clifton, an appointee of President George W. Bush who is based in Hawaii; and U.S. Circuit Judge Michelle Friedland, an appointee of President Barack Obama who sits in San Jose, California.
Sooner or subsequently, the ultimate legality of Trumps executive order on Muslim travel is sure to land before the Supreme Court with a full briefing schedule and a dramatic showdown in Washington. Every president wants to see his policies succeed, and Trump has already indicated that he might take the case to the nations highest court if needed.
I mean, well watch. Hopefully it doesnt have to, the president said Tuesday, according to Politico. Its common sense. You know some things are law, and Im all in favor of that. And some things are common sense. This is common sense.
At this early stage in which lower courts havent yet reached the merits of Trumps executive order its unlikely that the justices will choose to get involved. If theres an appeal, they may issue a one-line order either reversing or refusing to disturb whatever the 9th Circuit decides after Tuesdays hearing.
But its far more probable theyll been waiting for it out until the lower courts develop a bigger record, when there will be more substantive arguments and rulings to review. That could come several months down the line which means Neil Gorsuch, the judge Trump nominated to the Supreme Court, may get a chance to weigh in on the occurrence. Just not now.
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