Trump, Conway, DOJ fight travel ban EO ruling

Friday, February 10, 2017
Chris Woodward, Michael F. Haverluck (

Trump circle with fingersIn response to Thursday’s San Francisco federal appeals court ruling upholding the suspension his controversial immigration executive order, President Donald Trump tweeted a defiant promise and warning.

“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE,” the commander-in-chief exclaimed on Twitter.

von Spakovsky, Hans (Heritage)Hans van Spakovsky, senior legal fellow with The Heritage Foundation, answers some questions about the court ruling:

Q: We have a decision. What's your reaction?

"Well, I'm just shaking my head at it. It's really just another shocking decision by the federal courts and another sign of how these overbearing federal courts are basically seizing power from the other two branches of government and violating basic separation of powers, principles in the Constitution."

Q: What were they using as a basis for their ruling?

"They're just ... they're ignoring the law. They're refusing to recognize the authority delegated to the president by Congress and they're raising absurd issues like the claims that this order is based on religious discrimination when a plain reading of the executive order shows that it has absolutely nothing to do with religious discrimination of any kind. I mean, I really think it's federal judges thumbing their nose at the president and Congress and saying, We don't like this as a public policy matter and we're not going to let you do it. It really has nothing to do with the Constitution or our federal laws."

Q: Where does it go from here? What are the options?

"There are two options for the administration. Remember, this was just a three-judge panel of the Ninth Circuit. They can appeal to the entire Ninth Circuit and ask for what's called an en banc review – that's where you argue basically the same case before a full complement of judges from the Ninth Circuit. Or they can just frankly skip that and they can appeal directly to the U.S. Supreme Court on an emergency basis, asking that the stay be lifted."

Q: Are there other ways to achieve what the president wants to achieve in this executive order?

"Well, it seems to me that what they've got to do is speed up the whole purpose of what this executive order was about. Remember, the whole point of suspending for 90 days the entry of individuals from these terrorist countries was to check the vetting procedures that's used to investigate each person who wants to get a visa and make sure it's sufficient enough to stop dangerous people from coming in. And they're just going to have to put the resources to work inside the Department of Homeland Security to make sure that they can put in place whatever new vetting procedures are needed to take care of this problem."

Von Spakovsky made his comments on American Family Radio on Thursday afternoon.

Looking toward the later rounds

Trump’s warning that America’s national security is in danger because of the ruling implied that new refugees coming to America from militant nations pose a major threat, but he followed up by maintaining that he anticipates a quick and easy victory in the lawsuit as it moves forward, according to Fox News.

When asked about Trump’s response, his presidential adviser, Kellyanne Conway, would not indicate whether he would take the case all the way to the United States Supreme Court or pursue “different options,” yet she remained confident that the unfavorable decision does not pose a major hurdle to imposing the immigration order.

“[The ruling] does not affect the merits at all,” Conway told Martha MacCallum on The First 100 Days, insisting that it does not affect the White House’s confidence.

Just a week after a federal judge issued a halt to Trump’s executive order, an unanimous decision was reached by a three-judge panel on the 9th U.S. Circuit Court of Appeals on Thursday.

Not giving up so easily, the Justice Department issued a statement indicating that the legal battle is far from over.

“[We are] reviewing the decision and considering its options,” Trump’s Department of Justice announced.

Partisan politics?

Trump argued that the circuit court’s ruling was a maneuver by Democrats playing party politics.

"It's a political decision and we'll see them in court,” Trump insisted to the White House press poll not long after the decision was rendered. “It is a decision that we will win, in my opinion, very easily.”

When the president was asked about where he had learned about the ruling, he remained ambiguous.

"We just saw it – just like you did,” he responded to the press.

The order has been politicized as racist due to the fact that it targets incoming refugees from seven Middle Eastern and African nations, where internal conflicts and Islamic terrorism abound.

“Trump issued the executive order, which placed a 90-day pause on immigrants from Iraq, Iran, Syria, Yemen, Libya, Somalia and Sudan, on Jan. 27, causing chaos and outrage at airports across the country,” Fox News reported. “The order also imposed a 120-day pause on all refugees, and an indefinite pause on refugees from Syria.”

The ensuing legal battle over the controversial order is pitting federal judges against the White House.

“The case was given to the appeals court after a Seattle federal judge last week ordered a halt to Trump’s order,” Fox News’ Adam Shaw and Matthew Dean informed. “Judge James Robart issued a temporary restraining order after Washington state and Minnesota both sued. Attorneys from the Justice Department appealed Robart’s ruling, arguing that the president’s executive power gives him the authority to place restrictions on people coming into the country.”

Countering the Justice Department’s justification for the executive order, the circuit court judges sided with the Leftist Seattle judge.

"In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action," the ruling stated.

Ruling gone bad …

American Center for Law and Justice (ACLJ) Chief Counsel Jay Sekulow said the ruling irresponsibly puts Americans at risk.

“This decision is disappointing and clearly puts our nation in grave danger,” Sekulow declared Thursday night after the ruling. “The fact is that President Trump clearly has the constitutional and statutory authority to issue this order. It is clear: radical Islamic terrorists are at war with America. President Trump’s order is a proper and constitutional way to protect America.”

ACLJ filed an amicus brief with the federal appeals court arguing that Trump’s travel ban order is both necessary and constitutional. 

“The directives contained in the President’s Executive Order are closely tethered to discretionary powers vested in the Executive Branch by the Constitution and Congress and clearly fall within the President’s well-established constitutional and statutory authority,” attorneys from the Christian legal firm argued in their brief.

 Sekulow assured Americans that his organization will stand by the Trump administration all the way to the nation’s highest court to defend the immigration executive order, if need be.

“If the Trump Administration appeals this decision to the Supreme Court of the United States, we will file an amicus brief with the high court,” Sekulow assured. “Our position is clear: We contend that President Trump acted lawfully and constitutionally.”

Both sides

Arguments for the ban maintain that it helps shield the U.S. from further jihadist attacks, while those against it insist that it disrupts families and hurts businesses.

“Supporters of Trump's order argue it will help keep America safe from terrorists looking to infiltrate the United States from terror hotspots that often have inadequate vetting procedures,” Shaw and Dean explained. “Opponents have argued it is unconstitutional and discriminatory – claiming that it is a ‘Muslim ban’ and that it has harmed individuals and businesses.”

In an attempt to justify the ruling, the three judges claimed that they had not received “any evidence” from the government that indicates the seven targeted nations pose any considerable threat to national security.

"[The] government has not offered any evidence or even an explanation of how the national security concerns that justified those designations – which triggered visa requirements – can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated,” the ruling reads.

In agreement with the decision, Democratic leaders believe the Trump administration has sustained a major setback.

“Let’s be clear – this is a massive blow to the White House,” Interim Democratic National Committee (DNC) Chair Donna Brazile asserted in a statement. “The court upheld that we do not discriminate based on religion. That is what terrorists do, and what terrorists want us to do."

Also commending the circuit court judges’ decision, the American Civil Liberties Union (ACLU) attempted to turn the matter into a civil rights issue.

"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," ACLU Director of Immigrants’ Rights Projects Omar Jadwat announced after the ruling. "We will keep fighting this un-American executive order until it is permanently dismantled.”

Joining the Leftist attack on the order, Senate Minority Leader Chuck Schumer (D-N.Y.) urged Trump to abort any plans for future attempts to enact the order.

"President Trump ought to see the handwriting on the wall that his executive order is unconstitutional,” Schumer contended. “He should abandon this proposal, roll up his sleeves and come up with a real, bipartisan plan to keep us safe.”

Order outlook

As the legal battle moves forward, it is maintained that Trump will face an increasingly upward battle as more time goes by.

“If the case goes to the Supreme Court, it appears Trump’s nominee for its vacant seat, Judge Neil Gorsuch, is unlikely to be in place by the time it reached the court,” a Fox News report pointed out. “It is also possible that if it goes to the high court, by that time, the temporary restrictions would have expired. The administration could also ask a larger panel of judges to hear the appeal, or accept the order and go back to the Seattle-based federal court and try and block the next legal step – whether to grant the states’ request for a preliminary injunction – which would put enforcement of the Executive Order on hold until all the appeals are exhausted.”

Playing the race card while arguments took place in the courtroom, Washington State Solicitor General Noah Purcell alleged that statements made by the Trump presidential campaign pertaining to a Muslim ban were motivated by religious discrimination.

"There are statements that we've quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims, given that we haven't even had any discovery yet to find out what else might have been said in private," Purcell claimed.

In retaliation to the opposition he has received over his immigration executive order, Trump openly criticized Robart on Twitter, calling him a “so-called judge.”

On Wednesday – the day before the 9th Circuit ruling – Trump said that those behind the effort to undermine his immigration ban are putting U.S. citizens’ lives in danger.

“[I]f the U.S. does not win this case – as it so obviously should – we can never have the security and safety to which we are entitled,” Trump insisted.


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