Fresh challenges to President Trumpâs court-frozen immigration order took shape Monday with two former secretaries of state claiming the White House was undermining national security and nearly 100 Silicon Valley tech companies arguing it will keep the best minds from coming to America.
The powerful new voices were added with another legal showdown coming as early as Monday. The suspension of the order, meanwhile, has allowed those previously banned more time to try to reach the United States.
A decision Sunday by the U.S. Court of Appeals for the 9th Circuit preserved a lower judgeâs order to temporarily halt the ban â and based on a schedule the court outlined, the stop will remain in place at least until sometime on Monday. The Justice Department said it would not elevate the dispute to the Supreme Court before that.
Trump responded to the development Sunday by writing on Twitter that he had âinstructed Homeland Security to check people coming into our country VERY CAREFULLY.â A Department of Homeland Security spokeswoman did not immediately return messages seeking comment on how, practically, that screening would be implemented.
âJust cannot believe a judge would put our country in such peril,â Trump wrote. âIf something happens blame him and court system. People pouring in. Bad!â
Trump further came to the defense of his stalled order Monday. In a tweet, Trump dismissed as âfake newsâ various polls showing solid opposition to the executive order. âSorry,â Trump wrote, âpeople want border security and extreme vetting.â
The next few days will be telling for the future of the presidentâs executive order. The states of Washington and Minnesota, which are challenging the ban, asked the appeals court in the wee hours of Monday to keep the ban suspended, and Justice Department lawyers have until 6 p.m. to respond. The court then schedule a hearing or rule whether the ban should remain on hold.
Early Monday, two former secretaries of state â John F. Kerry and Madeline Albright â joined a six-page joint statement saying Trumpâs order âunderminesâ national security and will âendanger U.S. troops in the field.â The rare declaration, addressed to the 9th Circuit, was also backed by top former national security officials including Leon Panetta, who served as a past CIA director and defense secretary during the Obama administration.
Hours earlier, a host of technology giants â including Apple, Facebook, Google, Microsoft, Netflix, Twitter, Uber â were part of a âfriend of the courtâ legal brief by 97 companies opposing the Trump administrationâs immigration order.
The brief claimed the order was a âsignificant departureâ from U.S. immigration polices and âmakes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the worldâs best employees.â
In the meantime, people who had been stranded in legal limbo rushed to fly back to the United States. Some successfully reunited with family members, while others â particularly those whose visas were physically taken or marked as invalid â ran into roadblocks trying to board planes overseas. At Dulles International Airport in Northern Virginia on Sunday, immigration lawyers could be heard on phones, arguing with airline representatives to let their passengers board as some seemed confused over the various court rulings and what they meant.
What lies ahead is likely to be a weeks-long battle that will be waged in courtrooms across the country over whether Trumpâs ban can pass legal muster. Federal courts in New York, California and elsewhere have blocked aspects of the ban from being implemented, although one federal judge in Massachusetts declared that he did not think that challengers had demonstrated that they had a high likelihood of success. The lawsuits now stretch from D.C. to Hawaii, and the number seems to grow regularly.
The Trump administration has been steadfast in its support of the executive order, which it says is necessary for national security, and the president himself tweeted repeatedly his disdain for the judge in Washington state who put a stop to it.
âThe opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!â Trump wrote Saturday.
Vice President Pence said Sunday on NBCâs âMeet The Pressâ that White House officials felt that Trump was âoperating within his authority as president, both under the constitution and under clear statutory law.â Legal analysts have said that the president has broad authority to set immigration policy, although civil liberties advocates have countered that the order essentially amounts to a discriminatory ban on Muslims that has no real national security purpose.
âWeâre very confident that weâre going to prevail,â Pence said. âWeâll accomplish the stay and will win the case on the merits. But again, the focus here is on the safety and security of the American people.â
On Sunday morning television talk shows, some Republicans in Congress took issue with comments by the president, particularly his description of U.S. District Judge James L. Robart as a âso-called judge.â
âIâll be honest, I donât understand language like that,â Sen. Ben Sasse (R-Neb.) said. âWe donât have so-called judges, we donât have so-called senators, we donât have so-called presidents. We have people from three different branches of government who take an oath to uphold and defend the Constitution â¦ So, we donât have any so-called judges, we have real judges.â
Senate Majority Leader Mitch McConnell (R-Ky.) said: âWe 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.â
McConnell went on to offer a broader critique of Trumpâs executive order than he had previously: âWe all want to try to keep terrorists out of the United States. But we canât shut down travel. We certainly donât want Muslim allies who have fought with us in countries overseas to not be able to travel to the United States. We need to be careful about this.â
Several federal judges have ruled against the administration on its implementation of the ban, though the case now before the San Francisco-based 9th Circuit is perhaps the most significant one. It stems from a lawsuit brought by the states of Washington and Minnesota, which alleged that the immigration order was âseparating families, harming thousands of the Statesâ residents, damaging the Statesâ economies, hurting State-based companies, and undermining both Statesâ sovereign interest in remaining a welcoming place for immigrants and refugees.â
Responding to those arguments, Robart temporarily halted the ban on Friday. Then, 9th Circuit Judges William C. Canby Jr., who was appointed by Jimmy Carter, and Michelle Taryn Friedland, who was appointed by Barack Obama, denied the Justice Departmentâs request on Sunday to immediately restore it.
The Justice Department could have gone straight to the Supreme Court, but a Justice Department spokesman said it would not do so.
âWith the fast briefing schedule the appeals court laid out, we do not plan to ask the Supreme Court for an immediate stay but instead let the appeals process play out,â spokesman Peter Carr said.
Although the side that loses can request intervention from the nationâs highest judicial body, it would take the votes of five justices to overturn the panel decision. The court has been shorthanded since the death of Justice Antonin Scalia nearly a year ago, and it is ideologically divided between four more liberal justices and four conservative-leaning ones.
Leon Fresco, the deputy assistant attorney general for the Office of Immigration Litigation in Obamaâs Justice Department, said he was âsurprised that there is this exuberance to immediately rescind the executive order,â particularly given the timing issues.
Trumpâs order, which barred all refugees as well as citizens of seven Muslim-majority countries from traveling to the United States, was temporary. Refugees were banned for 120 days. The others were barred for 90 days, except those from Syria, whose travel to the United States was blocked indefinitely. The order was purportedly designed to give the administration time to formulate a plan on how to vet people coming from countries that have terrorist activity.
âIt is perplexing why the government wouldnât want to simply, at this point, maintain an orderly process in one court as opposed to fighting it out all across the country in different courts, and working its way to the Supreme Court,â Fresco said. âUnless the goal is to have an outright travel ban forever, and we should take the president at his word that thatâs not the goal, then letâs just have calmer heads prevail and conduct the security analysis that was going to be conducted during these 90 days.â
Indeed, if Trumpâs ban were to be immediately reinstated, that might spark chaos similar to that which occurred when it was first rolled out on Jan. 27. To implement the order then, the State Department provisionally revoked tens of thousands of visas. When people began landing at U.S. airports, Customs and Border Protection officers detained more than 100 people and deported some, sparking protests and lawsuits across the country.
It was unclear Sunday whether U.S. officials had a plan in place to avoid a repeat of that scenario, though much would depend on what specifically was ordered by a court, and when. Spokesmen for the State Department and Customs and Border Protection declined to comment on the question.
In an interview with Bill OâReilly of Fox News that aired Sunday afternoon, Trump insisted that the initial implementation of his order was âvery smoothâ and said â misleadingly â that âyou had 109 people out of hundreds of thousands of travelers, and all we did was vet those people very, very carefully.â That does not take into account the tens of thousands of people who could not travel because their visa was revoked, nor does it acknowledge those who were taken out of the country after their plane landed.
The Department of Homeland Security said Saturday that because of Robartâs ruling, it was suspending enforcement of the executive order entirely, and the State Department restored the visas that had been provisionally revoked. Advocates encouraged travelers from the affected countries who qualified for entry to get on planes as soon as possible because of the unpredictable legal terrain.
Early Sunday, the Justice Department asked the appeals court to intervene, asserting that it was improper for a lower court to engage in âsecond-guessingâ of the presidentâs judgment on a national security matter.
âThe injunction contravenes the constitutional separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nationâs elected representative responsible for immigration matters and foreign affairs; and Âsecond-guesses the Presidentâs national security judgment about the quantum of risk posed by the admission of certain classes of aliens and the best means of minimizing that risk,â acting solicitor general Noel Francisco wrote in a brief.
It is somewhat unusual for a district judge to issue an order that affects the entire country, but Robart, who was nominated by President George W. Bush and has been on the bench since 2004, said it was necessary to follow Congressâs intention that âthe immigration laws of the United States should be enforced vigorously and uniformly.â
He was quoting from a 2015 appeals court ruling that had blocked Obamaâs executive action that would have made it easier for undocumented immigrants in this country to remain. It was never implemented because of legal challenges.
Fred Barbash, Darryl Fears, Mike DeBonis, Spencer S. Hsu, Aaron Blake, Fenit Nirappil and Mark Guarino contributed to this report.