The government filed its reply on February 6th and followed earlier arguments in favor of an appellate stay of the lower court order of Senior District Court Judge James Robart. As discussed earlier, a temporary restraining order is very difficult to reverse on an interlocutory appeal. Normally, appellate courts will wait for a final decision and opinion from the lower court before agreeing to review the controversy. Of course, nothing is “normal” about this controversy in terms of procedure or policy.
The oral argument is scheduled for 3 pm and can be seen at this link: oral argument It is an admirable move by the Ninth Circuit. I have been a long critic of the bar on cameras before the Supreme Court and appellate courts. The public should be able to watch these historic arguments without fighting for the small number of seats in the courtroom.
The reply by the Justice Department leads with a direct reminder that, while it lost before Judge Robart in Seattle, it prevailed before the Boston federal district court:
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. Relying on his express statutory authority to suspend entry of any class of aliens to protect the national interest, the President has directed a temporary suspension of entries through the refugee program and from countries that have a previously identified link to an increased risk of terrorist activity, see 8 U.S.C. § 1187(a)(12). The purpose of that temporary suspension is to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks. As a different district court recently concluded, that objective provides a “facially legitimate and bona fide” justification that satisfies any constitutional scrutiny that applies. Louhghalam v. Trump, Civ. Action No. 17-10154-NMG, Order 18-19 (D. Mass. Feb. 3, 2017); see id. at 10-11, 15-16.
The oral argument will be particularly interesting in light of the hearing before Robart. At the hearing, Robart pressed the Administration on the basis for President Trump’s finding of national security dangers associated with these seven countries. Most judges are reluctant to substitute their judgment on such issues for a sitting president. After all, regardless of the criticism of excluding countries like Saudi Arabia, a president receives highly classified briefings on national security risks. Moreover, these countries are identified as having poor records and reviews for immigrants — problems that may not be as acute for countries like Saudi Arabia.
After the hearing, the Ninth Circuit could rule fairly quickly if it were so inclined. The losing could then ask for a full en banc review by the Ninth Circuit or proceed directly to the Supreme Court. Justice Anthony Kennedy would hear any emergency motions.