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Federal Appeals Court Refuses To Reinstate Trump's Travel Ban

Feb 9, 2017
Originally published on February 9, 2017 8:46 pm
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ROBERT SIEGEL, HOST:

And now for reaction from the White House, we turn to NPR's Scott Horsley, who's there. Scott, tell us about the administration's reaction tonight.

SCOTT HORSLEY, BYLINE: Well, Robert, the Justice Department was very cautious in saying it's reviewing its next moves and reading over the opinion. The president was less cautious. Shortly after the appeals court came out, we got a hint from President Trump that the legal fight may not be over. He tweeted out in all caps, see you in court.

And then President Trump also spoke briefly with reporters, denouncing this decision as what he called a political ruling. And he's been skeptical all along about judges that appear to be second-guessing his judgment on national security.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: We have a situation where the security of our country is at stake. And it's a very, very serious situation. So we look forward, as I just said, to seeing them in court.

HORSLEY: You know, the - as Bob Ferguson suggested, the president may have overplayed his hand a little bit by suggesting that he has sort of unfettered rein on issues of national security. The appeals court said the Supreme Court has repeatedly and explicitly rejected the notion that political branches have unreviewable authority over immigration and aren't subject to the Constitution when policymaking in that context. The judges also said that the government had shown no evidence that anyone from the seven countries named in this temporary travel ban had ever carried out a terrorist attack in the U.S.

SIEGEL: And we should say that we have reached out to the White House for an interview or comment with an appropriate official, but we have not gotten a response. Scott, thanks for that.

And returning to NPR justice correspondent Carrie Johnson, Carrie, let's go back to what the judges said here. I mean what, apart from the fact that they argue that they have the right and that they have the authority to challenge an order by the president even if it involves immigration or national security - what did they find so objectionable in this?

CARRIE JOHNSON, BYLINE: Well, at first, Robert, they talked about due process rights being violated not just of those legal permanent residents and green card holders but people who thought they had legal permission to come to this country temporarily on visas and were stopped at the border, held in conditions that some of them have described as very rough and, in some cases, bundled up and sent back overseas instead of being able to enter the U.S. That, according to the appeals court, without much notice was not kosher, and that alone is enough to keep this case alive moving forward.

Interestingly, Robert, despite some talk - the oral argument about some statements by Donald Trump, his close adviser Rudy Giuliani with respect to this whole executive order being underpinned by some kind of religious discrimination against Muslims, a so-called Muslim man - this appeals court panel did not decide that question tonight. They said that's a very serious issue. But it's early stages, very preliminary stages, and only...

SIEGEL: But...

JOHNSON: ...Limited evidence is here now.

SIEGEL: But I - what I read was - also, they said that in a matter like this, it is appropriate to consider such statements, not just the order itself, that to look at the previous history of it is relevant.

JOHNSON: Yes, of course. August Flentje, who was the Justice Department lawyer arguing on behalf of this travel ban in Donald Trump's administration, said, listen; judges, you should just look at the words on this executive order. And the judges concluded that can't be right. And in fact, while they're not convinced at this stage that there is evidence of discriminatory intent with respect to banning Muslims from the country, they did point to statements by the president on the campaign trail and afterward that raised some questions about religious preferences. Those are claims that are going to be litigated moving forward no matter where this case winds up.

SIEGEL: Scott Horsley, apart from saying both in that brief conversation we heard a little bit of earlier and before that in a tweet that President Trump looks forward to seeing his adversaries in court, do we have any sense of how the administration's going to move on this?

HORSLEY: No, we don't know whether they would pursue this, you know, in an en banc of the 9th Circuit or just wait for the district court to play out on...

SIEGEL: An en banc would say, we've heard from three of their judges; now we want to hear the whole court of appeals.

HORSLEY: The whole court, maybe have better odds. But we don't know if they're going to go that route or if - they could try to just rewrite the executive order to be more narrow. The appeals court said they were going to rewrite it, but the administration could try to do that itself.

SIEGEL: We now have a new attorney general, Jeff Sessions. I guess he'll play a central role in all this.

HORSLEY: And he is certainly a hardliner on immigration, and I think this executive order was very much in the Jeff Sessions spirit. His staffers play high-ranking policy roles in the White House, and his views on immigration carry a lot of sway here.

SIEGEL: Scott Horsley and Carrie Johnson, thanks to both of you.

HORSLEY: Good to be with you.

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