WASHINGTON — A federal appeals court late Saturday night local time denied the Justice Department’s request to allow it immediately to restart enforcement of President Trump’s refugee and travel bans.
The decision from the US Court of Appeals for the Ninth Circuit means the bans will remain on hold through the weekend, with a decision on a further request to reinstate the ban put off until at least Monday afternoon.
Justice Department lawyers had gone to the appeals court earlier Saturday, asking for an immediate stay of a lower court’s order that stopped enforcement of major portion’s of Trump’s Jan. 27 executive order nationwide.
The request came a little more than 24 hours after the Friday night order from US District Judge James Robart halting enforcement of much of President Trump’s executive order temporarily stopping visa-holders from seven majority-Muslim countries from entering the US and shutting down the US refugee program temporarily and entrance of Syrian refugees indefinitely.
“Appellants’ request for an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal is denied,” the late-night order from the appeals court stated.
In addition to the immediate stay request, the Justice Department’s lawyers also asked for a stay pending the department’s appeal of Robart’s order. That request is still under consideration.
Lawyers from Washington and Minnesota, who had brought the challenge in Robart’s court in Seattle, have until 11:59 p.m Sunday Pacific Time to file a response to the Justice Department’s request. The Justice Department then has until 3:00 p.m. Pacific Time Monday to file a reply brief.
In making their case for the stay, Justice Department lawyers wrote in a Saturday night filing, “The injunction immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.”
In the brief, the Justice Department lawyers argue that the trial court’s order violates the constitutional separation of powers, harms the public “by thwarting enforcement of an Executive Order” in the areas of immigration matters and foreign affairs, and “second-guesses the President’s national security judgment” regarding admission of people to the US.
Regarding the particular circumstance of the lawsuit, brought by the state of Washington, the Justice Department argues that the state has no legal standing to bring the claim because Washington “is not itself subject to the Executive Order.” Even if it does, the Justice Department continues, the court’s order is too broad because it stopped enforcement of parts of Trump’s executive order “untethered to Washington’s particular claims.”
Although temporary restraining orders like that issued by Robart are not generally appealable, Justice Department lawyers argue this order should be appealable because there was an adversarial hearing — as in, both sides were there and presented arguments — and, they assert that the length of the injunction here is “indefinite.” As such, they argue, Robart’s order should be treated like a preliminary injunction, which would be appealable.
The move made official what the Trump White House had promised on Friday night and followed a day of acrimonious tweeting from the president, who, at one point, tweeted that “[b]ecause the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country.”
After a day of antagonistic tweeting, Trump was more subdued in comments to reporters after the notice of appeal was filed, saying only, “We’ll win. For the safety of the country, we’ll win.”
The appeal over Executive Order 13769 is now at the Ninth Circuit, which hears federal appeals from a wide swath of the Western states, as well as Alaska and Hawaii.
Earlier Saturday, the Justice Department lawyers had filed a notice they would be appealing the order.
The Washington state attorney general who brought the lawsuit said he was not surprised by the move and would keep fighting the ban.
“President Trump’s decision to appeal comes as no surprise, and we will continue to hold him accountable to the Constitution,” Attorney General Bob Ferguson said in a statement. “We are confident the Court of Appeals will uphold Judge Robart’s well-reasoned decision halting – immediately and nationwide – the President’s unconstitutional Executive Order.”
On Friday night, US Customs and Border Protection held a call with airlines instructing them that things should basically go back to how they were before the executive order was signed. On Saturday, the State Department made that official in a significant way by reversing the provisional revocation of visas that the department had authorized after Trump signed the order. The Department of Homeland Security, under which CBP is organized, also issued a statement Saturday detailing that DHS stopped implementing the affected sections of the executive order.