Pence defends Trump's criticism of judge who blocked travel

Wed Feb 8, 2017 | 5:36 PM EST Legal battle over travel ban pits Trump's powers against his own words The James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals, is pictured in San Francisco, California February 7, 2017. Reuters/Noah Berger Legal battle over travel ban pits Trump's powers By Mica Rosenberg | NEW YORK A U.S. appeals court is weighing arguments for and against President Donald Trump's temporary travel ban, but its decision this week may not yet answer the underlying legal questions being raised in the fast-moving case. The 9th U.S. Circuit Court of Appeals in San Francisco is expected to rule only on the narrow question of whether a lower court's emergency halt to an executive order by Trump was justified. Trump signed the order on Jan. 27 barring citizens from seven Muslim-majority countries for 90 days and halted all refugee entries for four months. The appeals court has several options. It could kick the case back to lower court judge James Robart in Seattle, saying it is premature for them to make a ruling before he has had a chance to consider all the evidence. Robart stopped Trump's order just a week after he issued it and before all the arguments had been developed on both sides. Or the panel of three appellate judges could side with the government and find halting the order was harmful to national security, reinstating it while the case continues. Their decision is "one step in what will be a long, historic case," Stephen Yale-Loehr, a professor at Cornell University Law School who specializes in immigration. Ultimately, the case is likely to end up in the U.S. Supreme Court, legal experts said. The case is the first serious test of executive authority since Trump became president on Jan. 20, and legal experts said there were three main issues at play for the judiciary. The broad questions in the case are whether the states have the right to challenge federal immigration laws, how much power the court has to question the president's national security decisions, and if the order discriminates against Muslims. Washington state filed the original lawsuit, claiming it was hurt by the ban when students and faculty from state-run universities and corporate employees were stranded overseas. Trump administration lawyer August Flentje argued at an appeals court hearing on Tuesday that the states lack "standing" to sue the federal government over immigration law, but his arguments were questioned by the judges.   NATIONAL SECURITY If the court decides the states are allowed to bring the case, the next major question is about the limits of the president's power. "Historically courts have been exceedingly deferential to governmental actions in the immigration area," said Jonathan Adler, a Case Western Reserve University School of Law professor. Though, he added, "the way they carried it out understandably makes some people, and perhaps some courts, uneasy with applying the traditional rules." Trump issued the order late on a Friday and caused chaos at airports as officials struggled to quickly change procedures. At Tuesday's hearing, Judge Richard Clifton, an appointee of Republican president George W. Bush and Judge William Canby, an appointee of Democratic president Jimmy Carter, pushed the government to explain what would happen if Trump simply decided to ban all Muslims from entering the United States. "Would anybody be able to challenge that?" Canby asked. Flentje emphasized that the order did not ban Muslims. He said the president made a determination about immigration policy based on a legitimate assessment of risk. The government has said its order is grounded in a law passed by congress that allows the president to suspend the entry of "any class of aliens" that he deems "would be detrimental to the interests of the United States." When asked by the third judge - Michelle Friedland, appointed by Democrat Barack Obama - if that meant the president's decisions are "unreviewable" Flentje, after a pause, answered "yes." When pressed, Flentje acknowledged, however, that constitutional concerns had been raised about the order.   RELIGIOUS DISCRIMINATION One of the main concerns is allegations by the states, civil rights groups, some lawmakers and citizens that the order discriminates in violation of the constitution's First Amendment, which prohibits favoring one religion over another. The judges will have to decide whether to look exclusively at the actual text of the president's order, which does not mention any particular religion, or consider outside comments by Trump and his team to discern their intent. Washington state's attorney Noah Purcell told the hearing that even though the lawsuit is at an early stage, the amount of evidence that Trump intended to discriminate against Muslims is "remarkable." It cited Trump's campaign promises of a "total and complete shutdown of Muslims entering the United States." In a tweet on Monday night, Trump said "the threat from radical Islamic terrorism is very real" urging the courts to act quickly. Government lawyer Flentje countered Purcell by saying there was danger in second guessing Trump's decision-making about U.S. security "based on some newspaper articles." Clifton asked about statements on Fox News by Trump adviser Rudolph Giuliani, former New York mayor and former prosecutor, that Trump had asked him to figure out how to make a Muslim ban legal. "Do you deny that in fact the statements attributed to then candidate Trump and to his political advisers and most recently Mr. Giuliani?" Clifton asked. "Either those types of statements were made or not," said Clifton. "If they were made it is potential evidence." (Reporting by Mica Rosenberg in New York; Additional reporting by Lawrence Hurley in Washington and Nathan Layne in New York; Editing by Noeleen Walder and Grant McCool)  Brief opposition Washington Attorney General Bob Ferguson filed one of the first lawsuits seeking to block President Trump's executive order enacting a travel ban from seven Muslim-majority countries. Minnesota signed on as co-plaintiff and attorneys general from 17 other states and the District of Columbia signed an amicus brief against the order. Five states that Trump won in the presidential election -- North Carolina, Pennsylvania, Iowa, Mississippi and Kentucky -- have elected Democratic attorneys general, though only the first three signed the brief. Two states that went for Clinton, Colorado and Nevada, have elected Republican attorneys general but have not signed the brief. Voted for Trump Voted for Clinton Opposed travel ban Wis. N.J. Mich. N.Y. Kan. Iowa W.Va. Alaska Utah Tenn. Md. Penn. Ky. Neb. S.D. Wyo. Colo. Conn. S.C. N.C. La. Ind. Ill. Ariz. Calif. Miss. Nev. Del. Mass. Maine Vt. N.H. R.I. Hawaii N.D. Minn. Wash. Mont. Ore. N.M. Ark. Idaho Ohio Ga. Ala. Mo. Fla. Va. Texas Okla. D.C. NOTE: Hawaii filed its own suit and a brief supporting Washington. Source: Reuters By Travis Hartman | REUTERS GRAPHICS ============================================== Sun Feb 5, 2017 | 2:47 PM EST ban 7h ago | 01:30 Court rejects Trump appeal to restore travel ban Pence defends Trump's criticism of judge who block... X By Ayesha Rascoe and Yeganeh Torbati | WASHINGTON U.S. Vice President Mike Pence on Sunday defended President Donald Trump's attack on a federal judge who blocked a travel ban on citizens of seven mainly Muslim nations, as the first major legal battle of the Trump administration intensified. Trump blasted Judge James Robart as a "so-called judge" on Saturday, a day after the Seattle jurist issued a temporary restraining order on the ban. A U.S. appeals court later on Saturday denied the government's request for an immediate stay of the ruling. "The president of the United States has every right to criticize the other two branches of government," Pence said on the NBC program "Meet the Press." It is unusual for a sitting president to attack a member of the judiciary, which the U.S. Constitution designates as a check on the power of the executive branch and Congress. Senator Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, said Trump seems intent on precipitating a constitutional crisis. Some Republicans also expressed discomfort with the situation. "I think it is best not to single out judges for criticism," Senate Majority Leader Mitch McConnell said on CNN's "State of the Union" program. "We all get disappointed from time to time at the outcome in courts on things that we care about. But I think it is best to avoid criticizing judges individually." Republican Senator Ben Sasse, a vocal critic of Trump, was less restrained. "We don't have so-called judges ... we don't have so-called presidents, we have people from three different branches of government who take an oath to uphold and defend the Constitution," he said on ABC News program "This Week." The ruling by Robart, appointed by former Republican President George W. Bush, along with the decision by the 9th U.S. Circuit Court of Appeals in San Francisco to deny the government's request for an immediate stay dealt a blow to Trump barely two weeks into his presidency. It could also be the precursor to months of legal challenges to Trump's push to clamp down on immigration, including through the construction of a wall on the U.S.-Mexican border. The businessman-turned-politician, who during his presidential campaign called for a temporary ban on Muslims entering the United States, has vowed to reinstate the travel ban on citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen and a 120-day bar on all refugees. He says the measures are needed to protect the United States from Islamist militants. Critics say they are unjustified and discriminatory. ADVERTISEMENT LEGAL UNCERTAINTY The legal limbo will prevail at least until the 9th Circuit Court of Appeals rules on the government's application for a stay of Robart's ruling. The court is now awaiting further submissions from the states of Washington and Minnesota on Sunday, and from the government on Monday. The final filing is due at 1700 PST on Monday (0100 GMT on Tuesday). The uncertainty has created what may be a short-lived opportunity for travelers from the seven affected countries to get into the United States. "This is the first time I try to travel to America. We were booked to travel next week but decided to bring it forward after we heard," said a Yemeni woman, recently married to a U.S. citizen, who boarded a plane from Cairo to Turkey on Sunday to connect with a U.S.-bound flight. She declined to be named for fear it could complicate her entry to the United States. Reacting to the latest court ruling, Iraqi government spokesman Saad al-Hadithi said: "It is a move in the right direction to solve the problems that it caused." ‹ 14/14 Protesters demonstrate against U.S. President Donald Trump's executive order on immigration, in Hong Kong, China February 5, 2017. Reuters/Bobby Yip 1/14 Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu 2/14 Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu 3/14 A demonstrator against the immigration rules implemented by U.S. President Donald Trump's administration, protests at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu 4/14 Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu - RTX2ZNMO 5/14 Demonstrators against the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu 6/14 Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu 7/14 A demonstrator against the immigration rules implemented by U.S. President Donald Trump's administration, protests at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu 8/14 Mandy Adams, 70, of Los Angeles, holds a U.S. flag in support of the immigration rules implemented by U.S. President Donald Trump's administration, at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu 9/14 Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu 10/14 Police officers stand guard as demonstrators in support of and against the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu 11/14 Passengers arrive at O'Hare airport in Chicago, Illinois, U.S. February 4, 2017. Reuters/Kamil Krzaczynski 12/14 Lindley Hamlon, dressed as the Statue of Liberty, greets International travelers as they arrive at John F. Kennedy international airport in New York City, U.S., February 4, 2017. Reuters/Brendan McDermid 13/14 A demonstrator holds a sign to protest against U.S President Donald Trump's executive order banning refugees and immigrants from seven primarily Muslim countries from entering the United States during a rally in Philadelphia, Pennsylvania, U.S. February 4, 2017 Reuters/Tom Mihalek 14/14 Protesters demonstrate against U.S. President Donald Trump's executive order on immigration, in Hong Kong, China February 5, 2017. Reuters/Bobby Yip 1/14 Demonstrators in support of the immigration rules implemented by U.S. President Donald Trump's administration, rally at Los Angeles international airport in Los Angeles, California, U.S., February 4, 2017. Reuters/Ringo Chiu › Trump's Jan. 27 travel restrictions have drawn protests in the United States, provoked criticism from U.S. allies and created chaos for thousands of people who have, in some cases, spent years seeking asylum. In his ruling on Friday, Robart questioned the use of the Sept. 11, 2001 attacks on the United States as a justification for the ban, saying no attacks had been carried out on U.S. soil by individuals from the seven affected countries since then. For Trump's order to be constitutional, Robart said, it had to be "based in fact, as opposed to fiction". The 9/11 attacks were carried out by hijackers from Saudi Arabia, the United Arab Emirates, Egypt and Lebanon, whose nationals were not affected by the order. In a series of tweets on Saturday, Trump attacked "the opinion of this so-called judge" as ridiculous. "What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?" he asked. Trump told reporters at his private Mar-a-Lago resort in Florida late on Saturday: "We'll win. For the safety of the country we'll win." Related Coverage VIDEOIraqi family flies to New York after blow to Trump ban VIDEOHong Kong holds anti-Trump protest Iraq says ruling against Trump travel ban is move in right direction The Justice Department appeal criticized Robart's legal reasoning, saying it violated the separation of powers and stepped on the president's authority as commander-in-chief. The appeal said the state of Washington lacked standing to challenge the order and denied that the order "favors Christians at the expense of Muslims." INFLUX EXPECTED The U.S. State Department and Department of Homeland Security said they were complying with Robart's order and many visitors are expected to start arriving on Sunday, while the government said it expects to begin admitting refugees again onMonday. A spokesman for the International Organization for Migration, Leonard Doyle, confirmed on Sunday that about 2,000 refugees are ready to travel to the United States. "We expect a small number of refugees to arrive in the U.S. on Monday, Feb. 6th. They are mainly from Jordan and include people fleeing war and persecution in Syria," he said in an email. Iraqi Fuad Sharef, his wife and three children spent two years obtaining U.S. visas. They had packed up to move to America last week, but were turned back to Iraq after a failed attempt to board a U.S.-bound flight from Cairo. On Sunday, the family checked in for a Turkish Airlines flight to New York from Istanbul. "Yeah, we are very excited. We are very happy," Sharef told Reuters TV. "Finally, we have been cleared. We are allowed to enter the United States." Rana Shamasha, 32, an Iraqi refugee in Lebanon, was due to travel to the United States with her two sisters and mother on Feb. 1 to join relatives in Detroit until the trip was canceled as a result of the travel ban. She is now waiting to hear from U.N. officials overseeing their case. "If they tell me there is a plane tomorrow morning, I will go. If they tell me there is one in an hour, I will go," she told Reuters by telephone in Beirut. "I no longer have a house here, work, or anything," she said. (Additional reporting by Chris Michaud, Lin Noueihed, David Shepardson and Reuters TV; Writing by Ayesha Rascoe; Editing by Paul Simao and Mary Milliken)