The Department of Justice has filed a brief with the 9th Circuit Court of Appeals, responding to a legal challenge to President Trump's executive order on immigration.
The court is set to hear oral arguments by phone on Tuesday at 6 p.m. ET, in the next critical legal test of whether the president's decision to ban travel by people from seven Muslim-majority countries and halt refugee resettlement in the U.S. will be upheld.
In their brief, Justice Department lawyers write that the executive order is "a lawful exercise of the President's authority over the entry of aliens into the United States and the admission of refugees."
Last Friday, Judge James Robart, a federal judge on the U.S. District Court for the Western District of Washington state, imposed a nationwide temporary restraining order against the order. That decision effectively blocked the implementation of the travel ban, and now the Justice Department is seeking to reinstate it. On Saturday, the 9th Circuit denied the Justice Department's request to stay the suspension and allow enforcement of the ban to continue.
Lawyers for Washington state had argued that the executive order hurt residents and businesses in Washington, along with students and faculty in the state university system. The state also argued the ban is unconstitutional because it discriminates against Muslims.
The White House has countered that the executive order does not mention any faith group by name and that the president has broad powers when it comes to national security and immigration.
In its brief, the Justice Department also argues that Robart's decision in the district court was "vastly overbroad, extending far beyond the State's legal claims to encompass numerous applications of the Order that the State does not even attempt to argue are unlawful."
Trump took aim at Robart over the weekend on Twitter, diminishing him as a "so-called judge" whose decision "is ridiculous and will be overturned!" Robart was appointed by Republican President George W. Bush and was unanimously confirmed by the Senate.
STEVE INSKEEP, HOST:
Properly vetted refugees can enter the United States, at least today. That's because a judge temporarily blocked President Trump's ban on travel for refugees and people from seven countries. Today, judges from a federal appeals court hear arguments over whether to let the ban take effect once again. Let's talk about this with NPR's Joel Rose, who's on the line.
Joel, good morning.
JOEL ROSE, BYLINE: Good morning, Steve.
INSKEEP: So what are the court proceedings today?
ROSE: Well, the court has moved really quickly through all of this. Remember, the temporary restraining order was issued on Friday. Briefings on the case were due on Monday for the appellants and later on Monday for the Department of Justice. And now the Ninth Circuit Court of Appeals in California has asked the lawyers for both sides to call in for a hearing by telephone today at 3:00 p.m. Pacific Time. That's 6:00 p.m. on the East Coast.
INSKEEP: And just so we're clear on what's happening here, this is all about a temporary stay of the order. It is temporarily stayed, it's stopped. The appeals court might decide to leave that stay in effect or - the question is whether the law - whether the executive order stays in effect while they're arguing about it in court. What's the Justice Department saying about all this?
ROSE: Well, lawyers for the Justice Department say the president acted lawfully, that he has broad powers when it comes to immigration policy and national security and that this is an issue for the federal government, not for the states. Lawyers for the Department of Justice also say that this is not a ban on Muslims. DOJ lawyers argue that the executive order is actually neutral when it comes to religion because it blocks all people from those seven countries, whether they are Muslim or not.
INSKEEP: Although, of course, there are references to people of minority religions. Now, you mentioned an issue for the states as opposed to the federal government, which I guess is important because of who's suing. It's Washington state and the state of Minnesota here suing.
ROSE: That's right. Washington was the original plaintiff and then Minnesota joined later. They say that the appeals court would unleash chaos if it reinstates the president's executive order. They say the lower court was entitled to think about what the president and his advisers actually intended when they crafted this order. And to the states, there is plenty of evidence based on what Trump and his advisers have said to conclude that the order is intended to keep Muslims out of the country. The state of Washington says that thousands of its residents have been harmed by this order because it's deprived them of their rights to travel freely and it's separated families.
And those lawyers say the order has also cost financial harm to Washington businesses and public universities.
INSKEEP: You point out residents, that's because the original executive order included hundreds of thousands of green card holders, is that right?
ROSE: Right, it included those lawful permanent residents as well as travelers with valid visas. So, you know, the appeals court will have to consider all of that. The three-judge panel here in this case has two Democrats on it and one Republican. Another interesting point that the Justice Department brought up in its brief that I want to mention that could contribute to the potential outcome here - if there's going to be a restraining order, lawyers for the Department of Justice say it should have been narrowly tailored to protect those state residents who are affected by this travel ban.
So by that logic, the court could allow President Trump's executive order to take effect but only for people who have never been to the United States. That would include refugees and the visa holders who just haven't been here yet. And so that seems...
INSKEEP: Which is significant because the president is said to have really strong powers when it comes to just who to let into the United States in the first place.
ROSE: That's right. So the Department of Justice lawyers seem to be offering the court sort of a middle way here. But whatever the Ninth Circuit Court decides, this issue may be heading for the Supreme Court. But, of course, the Supreme Court is ideologically split, has only eight members for the moment. So if there's a 4-4 tie, that means this appeals court ruling could stand.
INSKEEP: Joel, thanks.
ROSE: You're welcome.
INSKEEP: That's NPR's Joel Rose. Transcript provided by NPR, Copyright NPR.