New York Times
By Adam Liptak
February 6, 2017
WASHINGTON — Opponents of President Trump’s targeted travel ban opened a three-pronged attack on Monday, telling the federal appeals court in San Francisco that the ban is a threat to the rule of law, to the nation’s security and to the economy.
The United States Court of Appeals for the Ninth Circuit will soon decide whether to stay a trial court’s order blocking the ban. It declined to do so immediately on Saturday night, and instead ordered additional briefs to be filed. The last brief, from the Trump administration, is due on Monday by 3 p.m. Pacific time.
The case was brought by the states of Washington and Minnesota. Their appellate brief, filed early Monday morning, said that “President Trump unleashed chaos by signing the executive order at issue here” on Jan. 27. The order banned travel from people from seven mostly Muslim countries and limited the nation’s refugee program.
On Friday, Judge James L. Robart of the Federal District Court in Seattle issued a temporary restraining order blocking key parts of the ban. On Saturday, the Trump administration appealed, arguing that Judge Robart’s order would cause irreparable harm to national security.
In response, lawyers for the two states said that was not plausible, as it would mean that the nation had long been suffering “some unspecified, ongoing irreparable harm.”
“That makes no sense,” the brief said. “As this court has held, preserving the status quo against sudden disruption is often in the interest of all parties.”
On Saturday, the Trump administration urged the Ninth Circuit to reject arguments based on religious discrimination, even though Mr. Trump has said he meant to favor Christian refugees. Judicial consideration of the president’s motives, the administration’s brief said, would violate the separation of powers.
The states responded that “courts have both the right and the duty to examine defendants’ true motives.”
They added that the administration had taken “a dizzying number of positions” on whether the executive order applied to permanent residents holding green cards. The order itself appears to cover such people, but the administration has said it will not enforce that part of the order.
Questions about permanent residents are not moot, the states’ brief said, as the administration could again change positions.
Several former diplomatic and national security officials filed a declaration making a second kind of argument.
“We view the order as one that ultimately undermines the national security of the United States, rather than making us safer,” the declaration said. “In our professional opinion, this order cannot be justified on national security or foreign policy grounds.”
The officials filing the declaration included John F. Kerry, a secretary of state under President Barack Obama; Madeleine K. Albright, who held the same position under President Bill Clinton; Susan E. Rice, President Obama’s national security adviser; and Leon E. Panetta, who served as secretary of defense and head of the C.I.A.
Mr. Trump’s order, the officials said, would endanger American troops and intelligence sources, disrupt counterterrorism and law enforcement efforts, damage the economy and have “a devastating humanitarian impact.”
“And apart from all of these concerns,” the officials said, “the order offends our nation’s laws and values.”
The third front in the legal battle against Mr. Trump’s order in the appeals court was opened by the technology industry and other businesses.
Almost 100 companies, including Apple, Facebook and Google, urged the Ninth Circuit to continue to block Mr. Trump’s order, saying that the order “harms the competitiveness of U.S. companies.”
The “instability and uncertainty” created by the order, the brief said, “will make it far more difficult and expensive for U.S. companies to hire some of the world’s best talent — and impede them from competing in the global marketplace.”
“Immigrants or their children founded more than 200 of the companies on the Fortune 500 list, including Apple, Kraft, Ford, General Electric, AT&T, Google, McDonald’s, Boeing, and Disney,” the brief said.
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