Legal Battle Over Trump Ban Could Be Headed To US Supreme Court
Two U.S. states, 10 former senior U.S. diplomats and security officials, and close to 100 big tech companies filed briefs opposing the controversial order
Legal briefs were pouring into a federal appellate court in San Francisco Monday morning, as President Donald Trump's order barring refugees and people from seven Muslim-majority countries from entering the United States moves into the next phase of a contentious court battle.
Two U.S. states, 10 former senior U.S. diplomats and security officials, and close to 100 big tech companies have filed briefs with the Ninth U.S. Circuit Court of Appeals opposing the travel ban, which they say is discriminatory, counterproductive, and "a significant departure from the principles of fairness and predictability that have governed the immigration system."
The government has until 3pm PST on Monday to submit its own briefs to the appeals court justifying the executive order. "Following that," Reuters reports, "the court is expected to act quickly, and a decision either way may ultimately result in the case reaching the U.S. Supreme Court."
Speaking on Fox News Sunday, Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, said she had "no doubt that it will go to the Supreme Court, and probably some judgments will be made whether this president has exceed[ed] his authority or not."
The Associated Press reports:
Washington and Minnesota said their underlying lawsuit was strong and a nationwide temporary restraining order was appropriate. If the appellate court reinstated Mr. Trump's ban, the states said, the "ruling would reinstitute those harms, separating families, stranding our university students and faculty, and barring travel."
The brief (pdf) from the high-ranking security officials, who include two former secretaries of state, two former heads of the CIA, a former secretary of Defense, a former secretary of Homeland Security, and senior officials of the National Security Council, blasted the order as "ill-conceived, poorly implemented, and ill-explained."
"This order cannot be justified on national security or foreign policy grounds," the co-authors—John Kerry, Madeleine Albright, Janet Napolitano, Susan Rice, Leon Panetta, John McLaughlin, Avril Haines, Michael Hayden, Lisa Monaco, and Michael Morell—wrote in the filing. "It does not perform its declared task of 'protecting the nation from foreign terrorist entry into the United States.'"
In fact, they wrote that the order could endanger U.S. troops abroad and "aid [the Islamic State's, or ISIS's] propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam."
Most, though not all, of the brief's authors served in Democratic administrations.
And the filing from 97 technology companies, including Apple, Facebook, Google, Microsoft, Netflix, Twitter, and Uber, "represents a rare coordinated action across a broad swath of the industry—97 companies in total—and demonstrates the depth of animosity toward the Trump ban," according to the Washington Post.
"The order represents a significant departure from the principles of fairness and predictability that have governed the immigration system of the United States for more than 50 years," the brief reads. "The order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world's best employees. It disrupts ongoing business operations. And it threatens companies' ability to attract talent, business, and investment to the United States."
Despite this outpouring of opposition, Trump "continued to use Twitter to wage an unprecedented public relations battle on behalf of his order and against judges standing in its way," Politico reported. He particularly targeted U.S. District Court Judge James Robart, the Seattle-based George W. Bush appointee who issued Friday's temporary restraining order on Trump's ban—calling him a "so-called judge" on Saturday and going even further 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!
— Donald J. Trump (@realDonaldTrump) February 5, 2017
Doing so, Jay Willis argued at GQ, puts Trump's Supreme Court nominee, Neil Gorsuch, "in a very tough position."
At Gorsuch's confirmation hearings, "[t]his question...will be near-impossible to duck," Willis writes:
"Do you endorse the president's stated belief that the federal judiciary is beneath the president and bows to his will?" Gorusch would never say yes, of course, because he's a federal judge himself, and no federal judge believes this, and saying so would be a giant middle finger to his colleagues everywhere. But if Gorusch says no, he turns that same middle finger to the guy who just nominated him for the Supreme Court, and—assuming he's eventually confirmed—makes it very hard for him to explain himself if he one day votes to uphold the ban. Gorsuch already faced a grueling confirmation process, and last night, Donald Trump didn't make things any easier.
Indeed, some said Trump's outbursts could have an even graver effect, bringing about what Huffington Post reporters Jessica Schulberg and Sam Levine described as a "constitutional crisis by eroding the independence of the judiciary and signaling to government agencies that they should ignore legal decisions that clash with the president's agenda."