The Department of Justice filed its brief Monday afternoon on behalf of the Trump administration ahead of the 3 p.m. PT deadline at the Ninth Circuit Court of Appeals in San Francisco, and the court has scheduled a hearing on the matter of the executive order banning travel from seven Muslim-majority countries for 3 p.m. PT Tuesday, as the San Francisco Chronicle is reporting. A ruling from the appellate court on whether to grant the administration's requested stay will set the stage for a final showdown at the Supreme Court in a case that could have broad repercussions for many years to come on the extent of the executive branch's power.
Sunday night a brief was filed on behalf of the states of Washington and Minnesota, which currently have joined forces to declare Trump's executive order unconstitutional following a ruling Friday by U.S. District Judge James L. Robart in Seattle, and a subsequent appeal by the Trump administration. That brief, as the New York Times reports, declares that "President Trump unleashed chaos by signing the executive order," and lawyers for the two states rejected outright that by staying the President's order some irreparable harm or security risk was being posed. "But that would mean that until the (Executive) Order was issued," they wrote, "Defendants were suffering some unspecified, ongoing irreparable harm. That makes no sense." And they added, "As this court has held, preserving the status quo against sudden disruption is often in the interest of all parties."
Further the states suggested they will be using some of Trump's anti-Muslim public comments against him, as CNN reports, writing it's "the duty of the courts to distinguish a sham secular purpose from a sincere one," and "Here, the sham of a secular purpose is exposed by both the language of the order and defendants' expressions of anti-Muslim intent."
Their brief was followed by multiple amicus briefs supporting the stay and opposing the President's appeal, including one signed by 97 major US companies, many of them Bay Area tech firms, and one signed by the attorneys general of 15 states including New York, California, Massachusetts, Pennsylvania, Iowa, and Virginia, as well as the District of Columbia. That latter brief stated, "If this court were to grant a stay, it would resurrect the chaos experienced in our airports beginning on the weekend of January 28 and 29, and cause harm to the states including to state institutions such as public universities, to the businesses that sustain our economies, and to our residents."
A coalition of diplomats and former national security officials including John Kerry and Madeline Albright filed their own declaration with the court today as well, asserting that Trump's order "ultimately undermines the national security of the United States, rather than making us safer" and saying it "cannot be justified on national security or foreign policy grounds... [and it] offends our nation’s laws and values.”
CNN reports on the administration's brief filed Monday, which says, in part, "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."
Acting Solicitor General Noel Francisco further argued on Saturday in the administration's appeal, "Judicial second-guessing of the President's determination that a temporary suspension of entry of certain classes of aliens was necessary at this time to protect national security would constitute an impermissible intrusion on the political branches' plenary constitutional authority over foreign affairs, national security, and immigration." She also said "judicial second-guessing of the President's national security determination in itself imposes substantial harm on the federal government and the nation at large."
I am no legal scholar, but doesn't it seem like there's going to be a great deal of very necessary judicial second-guessing to keep this administration in check, and to remind them that there are in fact three branches of government?
The three-judge panel who will be hearing the case are Judge William C. Canby Jr, a Carter appointee; Judge Richard R. Clifton, a George W. Bush appointee; and the most junior judge at the Ninth Circuit, Judge Michelle T. Friedland, a 2014 Obama appointee.
Trump, meanwhile, has remained quiet on the matter at least for the last 24 hours, though he had this to say yesterday on his personal Twitter account:
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
I have instructed Homeland Security to check people coming into our country VERY CAREFULLY. The courts are making the job very difficult!— Donald J. Trump (@realDonaldTrump) February 5, 2017
Enjoy the #SuperBowl and then we continue: MAKE AMERICA GREAT AGAIN!— Donald J. Trump (@realDonaldTrump) February 5, 2017