A federal appeals court on Sunday denied the Justice Department’s request for an immediate reinstatement of President Donald Trump’s ban on accepting certain travelers and all refugees.
The Trump administration had appealed a temporary order restraining the ban nationwide, saying a federal judge in Seattle overreached by “second-guessing” the president on a matter of national security.
The appeals court’s denial of an immediate stay means the legal fight over the ban will continue for days at least. The 9th U.S. Circuit Court of Appeals in San Francisco asked challengers of the ban to respond by early Monday, and for the Justice Department to file a counter-response by the evening.
Acting Solicitor General Noel Francisco, representing the administration, 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.
“The power to expel or exclude aliens is a fundamental sovereign attribute, delegated by Congress to the executive branch of government and largely immune from judicial control,” according to government’s filing.
The government has suspended the ban’s enforcement in compliance with order of the order of U.S. District Judge James Robart. His ruling was an extraordinary setback for the new president, who only a week ago acted to suspend America’s refugee program and halt immigration from seven Muslim-majority countries that the government said raise terrorism concerns.
“Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision,” President Trump tweeted.
Congress “vests complete discretion in the President” to impose conditions on alien entry, so Trump isn’t legally required to justify such decisions, it said. His executive order said the ban was necessary for “protecting against terrorism,” and that “is sufficient to end the matter.”
The Justice Department asked that Robart’s order be put on hold pending resolution of the appeal, so that the ban can “ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”