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9th Circuit Denies Government Request To Restore Refugee Order

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Kevin Daley Supreme Court correspondent
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The 9th U.S. Circuit Court Appeals rejected the Trump administration’s motion to immediately reinstate the president’s executive order barring migration from seven countries with high instances of terrorism.

The ruling is only a temporary setback for the administration — the court asked for further briefing on the case from the parties involved, and will issue a ruling on the government’s motion in the coming days. For the moment, refugees with valid visas from the seven countries affected by the order may continue entering the U.S.

Earlier this week, a federal district court imposed a nation-wide ban on the order’s enforcement after it was challenged by Washington state. The U.S. Department of Justice appealed the ruling. Government lawyers argue that the order is a lawful exercise of the president’s statutory and constitutional authority, that the court’s should give deference to the president’s national security findings, and that Washington lacks standing to bring a challenge, as it is not directly or tangibly harmed by the order.

The government’s brief is particularly insistent on the court’s duty to defer to the executive branch on matters of national security. It argues that the government has a heightened interest in protecting the nation, which the district court order unnecessarily harms, and that the courts lack the institutional capacity to review national security findings.

The brief reads:

First, the district court’s order contravenes the considered national security judgment of the President that the admission of certain classes of aliens at this time to the United States, under the existing screening and visa-issuance procedures, is not in the national interest. 

“‘[N]o governmental interest is more compelling than the security of the Nation,'” it reads, quoting Jifry v. FAA, a 2004 case decided in another federal appeals court. It continues:

This is particularly true as to predictive judgments about the potential national security threat posed by a class of aliens. A reviewing court would not be well-equipped to ascertain the quantum of risk, or what is a reasonable margin of error in assessing risk. Judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large. 

The 9th Circuit asked Washington to file a response to the government’s brief by Sunday night, and for the Department of Justice to file a counter-response by Monday night. A ruling concerning the reinstatement of the order could come as early as Tuesday. At this stage, the court is not reviewing the order on the merits. Rather, it’s  considering whether the ban should remain in effect while the courts evaluate the lawfulness of the order.

If the government loses in the 9th Circuit, it could appeal to the Supreme Court. Should the high court split 4-4 along ideological lines, the judgement of the lower court would be affirmed.

Speaking to reporters as he arrived at the Red Cross gala in Palm Beach, Fla., Trump expressed confidence the government would ultimately prevail in the appeal. “We’ll win,” he said. “For the safety of the country, we’ll win.”

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