Federal Appeals Court Upholds Stay On Trump's Immigration Order

Feb 9, 2017
Originally published on February 9, 2017 5:46 pm
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ROBERT SIEGEL, HOST:

A federal appeals court has denied the federal government's request to put its executive order on immigration back in effect. President Trump's executive order called for a temporary ban on travelers from seven majority Muslim countries and a ban on all refugees worldwide. After a lawsuit brought by the state of Washington, a federal judge in Seattle last week issued a temporary restraining order that put the policy on hold. The federal government looked to the appeals court, hoping for a stay, and that request has been denied. In other words, the executive order is still not in effect.

With me now is NPR justice correspondent Carrie Johnson and also NPR political editor Ron Elving. Good to have you both here.

RON ELVING, BYLINE: Good to be with you, Robert.

CARRIE JOHNSON, BYLINE: Thanks.

SIEGEL: And Carrie, first tell us what these three judges from the 9th Circuit Court of Appeals said.

JOHNSON: So Robert, this was a narrow question based on very limited evidence, and the main question here was, who was suffering the most harm? Was it the Trump Justice Department in the Trump White House, which had asserted the president had virtually unchecked authority at the border on issues of immigration and determinations of national security? Or was it the states of Washington and Minnesota, who argued that their citizens, the people who were attending their public universities and even the state's tax base were suffering irreparable harm because of these travel limits that President Trump had imposed kind of out of the blue just a few weeks ago?

This three-judge panel unanimously found that it was not clear that the Trump Justice Department would win either on the substance or that it was suffering real harm here. On the other hand, people in these two states were suffering real hardships, and so they have refused to lift that temporary restraining order. And President Trump's policy is halted for now.

SIEGEL: Do we know what for now means in this case, for how long?

JOHNSON: Well, you know, there's a briefing schedule moving forward in the lower court before this judge in Seattle. And right now the Justice Department tells us that it's determining next steps. It's possible they could ask the full 9th Circuit Court of Appeals to hear this case in the next couple of weeks. We don't know right now what they're going to decide.

SIEGEL: OK. Earlier, we spoke with Washington State Attorney General Bob Ferguson, and here's what he had to say about his reaction to this ruling and what's next.

BOB FERGUSON: The ball is really in the federal government's court to some degree to see if they wish to seek review by the U.S. Supreme Court. That said, you know, from day one, Robert, when I filed this complaint, I said I felt confident that we'd prevail throughout this judicial process, and I remain confident for the simple reason that no one in our country is above the law. And that includes the president of the United States.

SIEGEL: We've reached out to the White House for an interview or comment. We haven't heard back from them. We do have a response from President Trump on Twitter. He says in all caps, see you in court; the security of our nation is at stake. Ron...

ELVING: The president clearly feels that what he has done is within his purview as the chief executive to protect the nation and specifically to protect the nation from people coming in from outside. This has been a big focus of his campaign since he began his campaign for the presidency in 2015.

He has talked not only about a wall with Mexico but particularly about the dangerous countries of the Middle East. And this is the form that it all took when he actually got into the Oval Office and can sign an executive order. This was the form that his first blow against what he sees as this mortal danger took.

SIEGEL: And in court hearings, he's 0 for 2 on this one.

ELVING: Yes, he lost at the district court level in Seattle. That's been appealed to San Francisco. They have 14 days to appeal it to the entire circuit court for the 9th Circuit that sits in San Francisco. Or they could short circuit the process and try to come directly to the Supreme Court knowing that the court is currently split 4-4 and they don't really know what kind of ruling they would get from any of the eight.

SIEGEL: Carrie, you mentioned the possibility of calling for the entire 9th Circuit Court of Appeals to hear this. Would - what would be the fastest way to dispose of this matter? If you really wanted to get this ban in effect right away and you thought you could win, what would you do?

JOHNSON: Robert, if you're the White House, you might just want to go back to square one and rewrite this entire executive order, rescind the order that was done apparently without much consultation to senior officials in the State Department, the Department of Homeland Security, even to some extent the Justice Department and came as a real shock to travelers.

This court tonight found it did violate the due process rights of many of those travelers. You just might want to start back from square one, take this matter out of the courts and rewrite this order in a way that makes more sense for folks, gives people notice and takes into account their rights to due process and, you know...

SIEGEL: Yeah.

JOHNSON: ...Movement.

SIEGEL: But Ron Elving, I mean the idea of notice is something that Donald Trump ran against in a couple of different ways. That is, he faulted the Obama administration for saying when they were going to attack an ISIS-held city in Iraq. If you gave notice that you're going to be blocked at the airport, gave them three days' notice, in those three days, all kinds of bad guys would come into the country, he argued.

ELVING: We are much too predictable, Donald Trump said many, many times with respect to many different aspects of the way the federal government has done business both in terms of national security, in terms of trade policy, that we tip our hand, that we tell people what we're going to do, that we're all about process; we're all too nice about the entire process and that as a result, we get taken advantage of by other countries and by terrorists.

SIEGEL: These are all Trump themes from the...

ELVING: That is correct.

SIEGEL: ...From his campaign.

ELVING: I'm speaking here in the all-cap tones of Donald Trump the candidate. And Donald Trump the president is still behaving very much like Donald Trump the candidate much to the delight of his supporters, and now he's running into some of the complications of the complex realities that he has proposed these appealingly simple solutions to.

SIEGEL: But I'm wondering - and to turn back to you, Carrie Johnson, having read this ruling that runs well over 20 pages, do you read in that allusions to aspects of the policy which could have been worked out better? I mean do you see hints as to how you might correct this thing for it to fare better?

JOHNSON: Yeah, there are a couple of things. One is that initially the executive order was interpreted to apply to green card holders or legal permanent residents. Over time, the administration changed its position on that. Of course green card holders, legal permanent residents do have constitutional rights in the United States, and those rights were not being honored at the border and in airports across the country. That became a real problem for members of Congress from both sides of the aisle who jumped on the back of the White House in the chaos that followed after this order was implemented. So that's one thing that you could fix.

Another is giving people more notice of their due process rights. I know the president doesn't like notice, and he also doesn't like a lot of oversight. But this court tonight unanimously ruled that courts do defer to the White House on national security and immigration, but they're not powerless. And the president is getting that message tonight from this bench.

SIEGEL: NPR's Carrie Johnson and Ron Elving, thanks to both of you for helping us understand this decision by the 9th Circuit Court of Appeals today which keeps the ban on the Trump immigration order in place. Thanks.

JOHNSON: Thank you. Transcript provided by NPR, Copyright NPR.