U.S. appeals court weighs appeal of Trump's travel ban

U.S. President Donald Trump's travel ban faces its biggest legal test yet as a panel of federal judges heard arguments from the government and its opponents about two fundamentally divergent views of the executive branch and the court system.

Government wants executive order reinstated, barring people from 7 predominantly Muslim countries

A panel of three U.S. Federal Court judges will hear arguments Tuesday about President Donald Trump's executive order banning travellers from seven predominantly Muslim countries. (Lucas Jackson/Reuters)

U.S. President Donald Trump's travel ban faced its biggest legal test yet Tuesday as a panel of federal judges heard arguments from the government and its opponents about two fundamentally divergent views of the executive branch and the court system.

The government is asking the federal appeals court to restore the administration's executive order, contending that the president alone has the power to decide who can enter or stay in the United States. But several states have challenged the ban and insisted that Trump's executive order is unconstitutional.

Tuesday's hearing began before a randomly selected panel of judges from the San Francisco-based 9th U.S. Circuit Court of Appeals. Whatever the appeals court decides, either side could ask the U.S. Supreme Court to intervene.

A spokesman for the 9th U.S. Circuit Court of Appeals said it was unlikely the court would issue a ruling Tuesday.

Spokesman David Madden said a ruling is likely later this week.

He said the proceedings, which will be carried out by telephone, could last longer than 60 minutes depending on questioning by the judges. Each side was granted 30 minutes to make arguments.

'Pit the West against Islam'

Former CIA and National Security Agency director Michael Hayden is one of several former federal officials opposing the executive order.

The intelligence "did not warrant such a dramatic step as the executive order," Hayden said in a statement on the court document they submitted.

He also said parts of the order "seem to pit the West against Islam as an enemy, which would actually lead to a more dangerous world."

Fighting the courts

Seattle U.S. District Judge James Robart, who on Friday temporarily blocked Trump's order, has said a judge's job is to ensure that an action taken by the government "comports with our country's laws."

Trump said Tuesday that he can't believe his administration has to fight in the courts to uphold his refugee and immigration ban, a policy he says will protect the country.

"And a lot of people agree with us, believe me," Trump said at a roundtable discussion with members of the National Sheriff's Association. "If those people ever protested, you'd see a real protest. But they want to see our borders secure and our country secure."

On Monday, the Justice Department filed a new defence of the ban on travellers from seven predominantly Muslim nations. Lawyers said the ban was a "lawful exercise" of the president's authority to protect national security and said Robart's order should be overruled.

High-stakes legal battle

The filing with the appeals court was the latest salvo in a high-stakes legal fight surrounding Trump's order.

Washington state, Minnesota and other states say the appellate court should allow a temporary restraining order blocking the travel ban to stand as their lawsuit moves through the legal system.

The panel hearing the arguments includes two Democrat-appointed judges and one Republican appointee.

The appeals court over the weekend refused to immediately reinstate the ban, and lawyers for Washington and Minnesota argued anew on Monday that any resumption would "unleash chaos again," separating families and stranding university students.

The Justice Department responded that the president has clear authority to "suspend the entry of any class of aliens" to the U.S. in the name of national security. It said the travel ban, which temporarily suspends the country's refugee program and immigration from seven countries with terrorism concerns, was intended "to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks."

The challengers of the ban were asking "courts to take the extraordinary step of second-guessing a formal national security judgment made by the president himself pursuant to broad grants of statutory authority," the Justice Department wrote.

Case could end up at Supreme Court

It's possible that the panel could make a ruling on a technical point, rather than the larger merits of the case. Under 9th Circuit case law, temporary restraining orders cannot be appealed, a point noted by the states in their briefing to the court.

An analysis on that point would include examining whether the lower court's order is properly classified as a temporary restraining order rather than as another type of order, a preliminary injunction, noted Arthur Hellman, a federal courts scholar at University of Pittsburgh Law School.

If the case does end up before the Supreme Court, it could prove difficult to find the necessary five votes to undo a lower court order. The Supreme Court has been at less than full strength since Justice Antonin Scalia's death a year ago. The last immigration case that reached the justices ended in a 4-4 tie.

How and when a case might get to the Supreme Court is unclear. The travel ban itself is to expire in 90 days, meaning it could run its course before a higher court takes up the issue. Or the administration could change it in any number of ways that would keep the issue alive.

After Robart's ruling, the State Department quickly said people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — with valid visas could travel to the U.S.

States challenging the ban have been joined by technology companies, who have said it makes it more difficult to recruit employees. National security officials under President Barack Obama have also come out against it.