The fierce battle over President Donald Trump’s travel and refugee ban edged up the judicial escalator Monday, headed for a possible final face-off at the Supreme Court.
The Justice Department filed a new defense of Trump’s temporary ban on travelers from seven predominantly Muslim nations listed by the Obama administration as “countries of concern” as a federal appeals court weighs whether to restore the administration’s executive order. The lawyers said the travel ban was a “lawful exercise” of the president’s authority to protect national security and said a judge’s order that put the policy on hold should be overruled.
The filing with the San Francisco-based 9th U.S. Circuit Court of Appeals was the latest salvo in a high-stakes legal fight surrounding Trump’s order, which was halted Friday by a federal judge in Washington state.
The judges are to hear arguments Tuesday.
The appeals court earlier refused to immediately reinstate the ban, and lawyers for Washington and Minnesota—two states challenging it—argued anew on Monday that any resumption would “unleash chaos again,” separating families and stranding university students.
The Justice Department responded that the president has clear authority to “suspend the entry of any class of aliens” to the United States in the name of national security. It said the travel ban, which temporarily suspends the country’s refugee program and immigration from seven countries with terrorism concerns, was intended “to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks.”
The challengers of the ban, the Justice Department wrote, were asking “courts to take the extraordinary step of second-guessing a formal national security judgment made by the president himself pursuant to broad grants of statutory authority.”
Whatever the appeals court decides, either side could ask the Supreme Court to intervene.
It could prove difficult, though, to find the necessary five votes at the high court to undo a lower court order; the Supreme Court has been at less than full strength since Justice Antonin Scalia’s death a year ago. The last immigration case that reached the justices ended in a 4-4 tie.
The president’s executive order has faced legal uncertainty ever since Friday’s ruling by U.S. District Judge James Robart, which challenged both Trump’s authority and his ability to fulfill a campaign promise.
The State Department quickly said people from the seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—could travel to the United States if they had valid visas. The Homeland Security Department said it was no longer directing airlines to prevent affected visa holders from boarding U.S.-bound planes.
Epoch Times contributed to this report.