Courts 'begging' for evidence to support Donald Trump's travel ban
A federal judge in Virginia has pressed the US government to produce any evidence that a ban on travel from seven overwhelmingly Muslim countries was necessary on national security grounds.
Referring to the California federal appeals court decision Thursday (Friday NZT) that maintained a freeze on President Donald Trump's executive order, US District Judge Leonie Brinkema said that "the courts have been begging you to provide some evidence, and none has been forthcoming".
The presidential order, she said, "has all kinds of defects" and "clearly is overreaching" when it comes to long-term residents of the United States. The White House has issued guidance that those residents are exempt from the ban, but that language is not actually in the order.
The only evidence provided by the government in the Virginia challenge to the ban that she was considering, she noted, was the order itself.
On the other hand, Brinkema said, "there is some strong, colourful evidence that the motivations for this order may bump into the establishment clause of the First Amendment" - a reference to freedom of religion.
She said there was also "startling evidence" from national security professionals that the order "may be counterproductive to its stated goal" of keeping the nation safe.
Brinkema cited a letter from a bipartisan group of former high-ranking officials who warned that the ban would aid the Islamic State's propaganda efforts, endanger troops abroad and damage counterterrorism relationships.
"I don't have a scintilla of evidence from the respondents that counters this very powerful piece of evidence," Brinkema said. "Give me the evidence."
Virginia is asking for a nationwide injunction against the ban similar to that issued in Washington state and upheld by the 9th Circuit Court of Appeals in California. Virginia Attorney General Mark Herring intervened in the case last week, arguing that Virginia will lose students and workers under the order.
As one example, the state's attorneys point to Najwa Elyazgi, a Libyan senior at George Mason University. After being stranded in Istanbul for a week and returning only under the Washington state court order, Elyazgi says she plans to attend graduate school in Canada.
Virginia's solicitor general, Stuart Raphael, said that over a thousand college students and 66 faculty members in Virginia are affected by the ban.
"They can't leave and know that they can come back," he said.
Erez Reuveni, senior litigation counsel from the Justice Department's Office of Immigration Litigation, argued that the state had no standing to challenge the ban. The original plaintiffs in the case, Tareq and Ammar Aziz, have dropped their suit after successfully entering the United States. So has plaintiff Sahar Kamal Ahmed Fadul, who came through Dulles on Tuesday.
"Virginia has a policy dispute with the president," Reuveni said. "Virginia cannot place itself in removal hearings."
While an individual affected by the ban might be able to bring a case against it, Reuveni argued that Brinkema could not review the rationale behind national security policy.
"I don't even understand how this trial would work," Reuveni said. "Could President Trump be called to testify? ... I don't think you want to go there."
Brinkema challenged that assertion. While she acknowledged that the president has the right to bar people from coming into the United States if he finds "the entry of any aliens" would be "detrimental" to the country's interests, she said the finding must have some basis.
"The word finding in the law doesn't just mean one thinks, one believes," she said.
She asked Reuveni if the president could deem all redheads a threat to the country and ban them.
"Are you saying a court could not look at that order and say, 'What is going on here?'" she asked.
Reuveni responded that the government, not the courts, make national security determinations. For a court to do so, he said, might be a "constitutional crisis."
But he also argued that statements Trump made "prior to taking the oath of office" should not be used to evaluate his current actions.
Former national security professionals, he said, "don't know what's happened today, when the president does."
On the 9th Circuit's order, Reuveni said, "We may appeal, we may not."
Brinkema did say she would have to evaluate how to handle the Virginia case in light of the 9th Circuit ruling. Raphael argued that the commonwealth is actually further along in challenging the ban than Washington state.
"It's not a race," Brinkema said.
What's the Virginia case about?
Virginia claims Trump is barring people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen to deliver on the "Muslim ban" he called for during his presidential campaign. The state is asking US District Judge Leonie Brinkema, who was appointed to the court by President Bill Clinton, to enter a preliminary injunction blocking enforcement of the ban throughout the US while she considers a more permanent ruling.
After a hearing Friday in Alexandria, Virginia, Brinkema said her decision can't be "written overnight," but that she'd issue it as soon as possible. She noted the temporary ban issued by a Seattle federal judge applies nationwide.
A win for Virginia would bolster the delay ordered by a federal judge in Seattle and multiply the problems for the Trump administration in trying to put the travel ban in place. A victory by the government could create a split with Thursday's ruling and hasten review by the Supreme Court. In either event, the losing party is likely to appeal.
How does this case relate to other cases around the nation?
Immigration advocates, states and individual visa-holders have filed more than 10 suits in federal courts challenging the ban. Four judges, including Brinkema and judges in Seattle and Brooklyn, New York, entered orders temporarily halting the government from enforcing parts of the order. Appeals-court backing for the Seattle judge's order that blocks enforcement of the travel ban means it will remain in place while the lower court considers a more-permanent ruling.
The Seattle order is the broadest, effectively blocking enforcement of much of the executive order. Virginia's request would block enforcement of the section barring travel by citizens of the seven named countries, but doesn't affect the part of the order blocking refugees from entering the US The Brooklyn order is even narrower, blocking the government from deporting those arriving in the .S from the seven countries. There are distinctions in how the cases confront Trump's order.
What does Virginia claim?
The order is "a monumental abuse of executive power" that harms the state's economy and public universities by barring foreign students, professors, workers and their family members, lawyers for Virginia said in a brief filed with the court. The order violates the US Constitution's Establishment Clause, which bars the government from favouring one religion over another, according to the state. And stripping visa-holders and permanent US residents from the seven countries without a hearing violates the Fifth Amendment's Due Process Clause, it claims. Sixteen states and the District of Columbia filed a brief supporting Virginia's claims. No immigrant from the seven named countries has committed terrorist acts on US soil.
There is "overwhelming evidence that the executive order is simply Trump's way of following through on a campaign promise to ban Muslims," Stuart Raphael, Virginia's solicitor general, told the judge Friday. "If a law is designed to harm a religion or advanced a religion, it is unconstitutional."
What does the Trump administration say?
Lawyers representing the US claim Virginia isn't a proper party to sue over a travel ban. Congress gave the president "unreviewable authority to suspend the entry of any class of aliens," the government said in its brief. Virginia's claims of damage to its economy and state-run colleges are vague and insufficient to support an order blocking the government from enforcing the immigration laws. The ban doesn't target Muslims, but is intended to allow the government to institute stricter controls on immigration from countries where "deteriorating conditions" due to "war, strife, disaster and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States," the US said.
At Friday's hearing, the government argued that an injunction can't be justified, because there is no immediate harm to travellers, and that Congress gave the president the authority to regulate which classes of aliens may enter the country. The president may have national security information that his detractors don't, the US said.
Many of the arguments are the same as in the case decided in California. It's unclear whether the Virginia court will agree with the California court.
- Washington Post/Bloomberg