What you need to know about the US legal showdown over Trump's travel restrictions

Protestors fill the baggage claim area during a rally against a temporary travel ban signed by US President Donald Trump at Detroit Metropolitan airport in Romulus, Michigan on Jan 29, 2017.
Protestors fill the baggage claim area during a rally against a temporary travel ban signed by US President Donald Trump at Detroit Metropolitan airport in Romulus, Michigan on Jan 29, 2017. PHOTO: REUTERS
US President Donald Trump speaks as he meets with county sheriffs during a listening session in the Roosevelt Room of the White House in Washington, DC on Feb 7, 2017.
US President Donald Trump speaks as he meets with county sheriffs during a listening session in the Roosevelt Room of the White House in Washington, DC on Feb 7, 2017.PHOTO: BLOOMBERG

WASHINGTON - Mr Donald Trump's executive order on immigration has legal experts grappling with a key question: how broad is the US president's reach when it comes to shaping migration policy?

Mr Trump's decree on Jan 27 slapped a blanket ban on entry for nationals of seven predominantly Muslim countries for 90 days and barred all refugees for 120 days, except those from Syria who were blocked indefinitely.

The state of Washington filed a lawsuit testing the broad constitutionality of Mr Trump's order. It was based on claims that the state had suffered harm from the travel ban - for example students and staff of state-funded universities were stranded overseas. Minnesota state later joined Washington in challenging the order.

On Feb 3, Seattle federal judge James Robart issued a temporary nationwide suspension of the president's order, which the US government swiftly appealed.

The ultimate ruling in the case could clear confusion regarding Mr Trump's executive reach and leave a lasting legal impact.

Where the case stands now

All eyes are on the Ninth Circuit Court of Appeals, based in San Francisco, as it weighs the order temporarily halting the ban nationwide issued by Judge Robart.

A hearing before three judges on the court - two of whom were appointed by Democratic presidents, and one by a Republican - took place on Feb 7 where lawyers representing the Trump administration and the two states faced tough grilling.

The hearing was focused on whether to lift the suspension of the ban, not on the constitutionality of the decree itself - a broader battle that looks likely to go all the way to the Supreme Court.

The two Democratic-leaning states were backed in a court brief filed by 16 state attorneys-general. A number of groups have also filed briefs backing the states' efforts, including the American Civil Liberties Union, the Southern Poverty Law Centre - which monitors extremism in the US - and the HIAS refugee protection organisation.

Nearly 300 law professors and some 130 Silicon Valley firms have also submitted arguments supporting Judge Robart's opinion.+

 

What Mr Trump and his administration say

Mr Trump has dismissed Judge Robart as "a so-called judge" and voiced confidence that his ruling would be overturned.

He justifies his decree by invoking Article II of the Constitution, which grants the president authority to direct immigration policy and conduct foreign affairs.

The US government has defended the president's travel ban as a "lawful exercise" of his authority, and claims the federal court erred in barring enforcement of the measure.

Mr Trump's argument is also founded in part on a 65-year-old provision of the federal Immigration and Nationality Act, which allows the president to suspend US entry of any category of foreigners whose presence he deems "detrimental to the interests of the United States".

Government lawyers are trying to bolster this argument by saying that the judiciary is unqualified to decide on national security matters.

"Unlike the president, courts do not have access to classified information about the threat posed by terrorist organisations operating in particular nations, the efforts of those organisations to infiltrate the United States, or gaps in the vetting process," they wrote in their appeal.

What opponents say

Those opposed to the White House decree also cite the Constitution, saying that the executive order violates its fundamental principles including those on equality, freedom of movement and freedom of religion.

They also emphasise that the role of the judicial branch is to check the power of the executive, especially to protect minorities.

The states pin the legitimacy of their complaint on the fact that Mr Trump's ban affects them through its negative consequences on employment, business and education.

They also warn that reinstating the ban could threaten public order, considering the chaos that broke out, especially in airports, following its hurried implementation.

How the appeals court may rule

The court can opt to reinstate the ban, confirm its suspension - or schedule an additional hearing.

If the ban is restored, the authorities have yet to indicate whether they have taken steps to avoid a repeat of the airport detentions and deportations which fueled international outrage and mass protests the first time around.

If the court takes the second option, Judge Robart's decision would remain in place nationwide, keeping the US open to refugees and travellers from the seven targeted countries.

The losing party would be able to request the Supreme Court to take on the case.

What happens if the case is taken to Supreme Court

If the nation's highest court accepts, five of the eight total judges would be required to reverse the decision by the Court of Appeals.

Achieving that majority poses a challenge: the Supreme Court is currently ideologically split between four conservatives and four progressives.

Mr Trump has nominated a conservative, Judge Neil Gorsuch, to fill the vacant ninth seat. But he must first get confirmed by the Senate.

SOURCE: AFP, REUTERS