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Travel Ban Lifted But For How Long? Court Must Decide

Washington state Solicitor General Noah Purcell, center, talks to reporters as Attorney General Bob Ferguson, third from right, looks on following a hearing in federal court in Seattle, Feb. 3, 2017.
Washington state Solicitor General Noah Purcell, center, talks to reporters as Attorney General Bob Ferguson, third from right, looks on following a hearing in federal court in Seattle, Feb. 3, 2017.
Travel Ban Lifted But For How Long? Court Must Decide
Travel Ban Lifted But For How Long? Court Must Decide GUEST: Dan Eaton, partner, Seltzer Caplan McMahon Vitek

A panel of the court of appeals will decide whether to up hold the travel ban and journalist go public with the struggles with impartiality and the age of the Trump presidency. This is KPBS Midday Edition. I'm Maureen Cavanaugh. It is Monday, February 6. Our top story amid the addition Encinitas students studying on a student visa was allowed back into the U.S. on Sunday after being turned away last week. At this time Homeland security officials at the airports say they are not enforcing President Trump's Executive Order travel ban. They are abiding and nationwide state posed by a judge in Washington state. The Department of Justice is challenging that order asking the Court of Appeal to dismiss the state and allow customs to refuse entry to refugees and citizens from seven Muslim countries. The showdown is set for this afternoon with the ruling expected by tomorrow and joining me to discuss this legal battle is Dan Eaton, Trent 20. -- Tran 20. There are two main questions whether Washington state and Minnesota really if they have standing to block President Trump's order on this basis and they are only seeking to block certain parts of the order. Also on the merits the basic question is whether the president exceeded his authority with this order and whether he has the authority under the immigration act of 1952 to issue the order that he did and also the basis on which the states sought to block this weather that order offense protection such as a right to due process and whether it offense the prohibition on the First Amendment clause. Is one of the key questions is going to be asked who would be hurt most by not maintaining the status quote, in other words, in lifting the state and allowing the travel ban to be imposed who would be hurt the most the state or the government? That is right. When you are talking about the specific issue right now it is on a motion to lift the judge's order. They will have to say how does the status quo best maintain? They are maintaining that all you are doing was established immigration law as it existed before. The question really is whether who was more likely to prevail on the merits. Mr. Trump the ministration has to show they are very likely to win in order to justify lifting the temporary block on much of President Trump's Executive Order. There are number of briefs supporting the state of Washington and from big corporations. Is the unusual at that stage of the legal process? It is early but understand what the basis is. Microsoft and Amazon have submitted declarations and supported the state's request to block Mr. Trump's order in saying that our employees are being hurt. The state itself is saying that public university students and faculty who are affected by this are being excluded from traveling. Summer stranded abroad according to the the trouble order are unable to get back to these public universities. It is unusual to have this level of activity but given the scope of this order it is not all that surprising. War the judges? There are three. A judge was appointed by President Carter and another is Richard Clifton who was appointed by Bush and the final judge is Michelle Freeland who was appointed by President Obama back in 2013. What are the outcomes? The potential outcomes are the ninth circuit could agree with Trump and see the judges order needs to be lifted, which would reinstate the trouble ban. Another is that the motion panel can ask for more briefing and for oral argument and another one is to deny President Trump's request altogether, which would leave the temporary restraining order in place. The judge said that he is going to seek to have the parties brief and argue with the preliminary injunction, which you will rule on the merits on expedited basis. Those are the three potential outcomes. The losing side is probably going to appeal. A lot of people here are keeping an eye on this case. Whether President Trump's order remains in place or whether the judges order temporarily lifting it instead remains the rule of the day. Introducing this right now, President Trump's order has no legal force or effect. If it goes back into effect, those people who was to travel outside of the company want to come back in and those who are in route and obtained a visa will not be allowed to come in. The San Diego implications are significant especially when you consider that one of the arguments for blocking President Trump's order is that it prevents reunification with family members were already here in the United States and for our purposes here in San Diego. You expect a ruling by tomorrow? Certainly sometime this week. It is hard to predict in this situation how quickly they were rule but it is clear from their fast briefing schedule that the state issued their brief, which I have read early this morning. President Trump's response is due at 3:00 today our time. Given how quickly they have asked for briefing, it is going to be very surprising if they ruled later than that given the stakes are involved. I've been speaking with Dan Eaton. Thank you so much. Thank you.

Lawyers for Washington state and Minnesota are telling a federal appeals court that restoring President Donald Trump's ban on refugees and travelers from seven predominantly Muslim countries would "unleash chaos again."

The filing with the 9th U.S. Circuit Court of Appeals in San Francisco came early Monday after the White House said it expected federal courts to reinstate the ban. Justice Department lawyers were expected to respond later in the day.

Washington and Minnesota say their underlying lawsuit is strong and a nationwide temporary restraining order is appropriate. If the appellate court reinstates the ban, the states say the "ruling would reinstitute those harms, separating families, stranding our university students and faculty and barring travel."

RELATED: Travelers Denied Entry A Week Ago, Now Arriving In US

The rapid-fire legal maneuvers by the two states were accompanied by a declaration filed by John Kerry and Madeleine Albright, former secretaries of state, along with former national security officials under President Barack Obama. They said Trump's ban would disrupt lives and cripple U.S. counterterrorism partnerships around the world without making the nation safer.

"It will aid ISIL's propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam," according to the six-page declaration filed in court.

"Blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that we each took oaths to protect," the declaration says.

The technology industry also argued against the ban, contending it would harm their companies by making it more difficult to recruit employees. Tech giants like Apple and Google, along with Uber, filed their arguments with the court late Sunday.

The government began unwinding the executive order over the weekend after James Robart, a federal judge in Seattle, put it on hold. Family members affected by the policy were reuniting with relatives at American airports on Monday.

Two Yemeni brothers whose family has sued over the travel ban arrived at Dulles International Airport in Virginia, greeted by their father, and in Colorado, a college student who traveled to Libya to visit her sick mother and attend her father's funeral was back in Fort Collins on Monday. She was welcomed with flowers and balloons by her husband and children.

The next opportunity for Trump's team to argue in favor of the ban will come in the form of a response to the Washington state and Minnesota filings. The 9th Circuit ordered the Justice Department to file its briefs by 6 p.m. EST Monday. It had already turned down a Justice request to set aside immediately a Seattle judge's ruling that put a temporary hold on the ban nationwide.

Abdullah Alghazali, right, hugs his 13-year-old son Ali Abdullah Alghazali after the Yemeni boy stepped out of an arrival entrance at John F. Kennedy International Airport in New York, Feb. 5, 2017.
Alexander F. Yuan / Associated Press
Abdullah Alghazali, right, hugs his 13-year-old son Ali Abdullah Alghazali after the Yemeni boy stepped out of an arrival entrance at John F. Kennedy International Airport in New York, Feb. 5, 2017.

That ruling last Friday prompted an ongoing Twitter rant by Trump, who dismissed U.S. District Court Judge James Robart as a "so-called judge" and his decision "ridiculous."

Trump renewed his Twitter attacks against Robart on Sunday. "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!" He followed with another tweet saying he had instructed the Homeland Security Department to check people coming into the country but that "the courts are making the job very difficult!"

The government had told the appeals court that the president alone has the power to decide who can enter or stay in the United States, an assertion that appeared to invoke the wider battle to come over illegal immigration.

Congress "vests complete discretion" in the president to impose conditions on entry of foreigners to the United States, and that power is "largely immune from judicial control," according to the court filing.

Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, predicted the appeals court would not have the last word. "I have no doubt that it will go to the Supreme Court, and probably some judgments will be made whether this president has exceed his authority or not," she said.

In his ruling, Robart said it was not the court's job to "create policy or judge the wisdom of any particular policy promoted by the other two branches," but to make sure that an action taken by the government "comports with our country's laws."

The Twitter attacks on Robart — appointed by President George W. Bush — prompted scolding from fellow Republicans as well as Democrats.

"We don't have so-called judges," said Sen. Ben Sasse, R-Neb. "We don't have so-called senators. We don't have so-called presidents. We have people from three different branches of government who take an oath to uphold and defend the Constitution."

Trump's order applied to Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen — Muslim-majority countries that the administration said raise terrorism concerns. The State Department said last week that as many as 60,000 foreigners from those seven countries had had their visas canceled. After Robart's decision, the department reversed course and said they could travel to the U.S. if they had a valid visa.

The department also advised refugee aid agencies that refugees set to travel before Trump signed his order would now be allowed in.

Feinstein spoke on Fox and Sasse was interviewed by ABC.