The government’s Emergency Motion for a Stay pending appeal from the District Court Temporary Restraining Order halting Trump’s Immigration Executive Order now is fully briefed.

My view on the TRO is here, Absurd Fed Ct TRO halts enforcement of entire Executive Order on visas, refugees.

The government just filed its Reply to the Opposition filed by the State of Washington late Sunday night. As discussed earlier, the opponents of the EO are attempting to have the judiciary substitute its judgment as to security needs, even though admission of aliens to the U.S. is within the exclusive purview of the President.

The Court ordered telephone oral argument Tuesday at 3 p.m. Pacific time.

So the court is slow-walking it.

The 9th Circuit panel had been expected to rule quickly. If the stay is rejected, expect the government to go to the U.S. Supreme Court, where initially application would be made to Justice Anthony Kennedy, who covers the 9th Circuit.

Here are the key government arguments in the Reply:

The Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees. Relying on his express statutory authority to suspend entry of any class of aliens to protect the national interest, the President has directed a temporary suspension of entries through the refugee program and from countries that have a previously identified link to an increased risk of terrorist activity, see 8 U.S.C. § 1187(a)(12). The purpose of that temporary suspension is to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks. As a different district court recently concluded, that objective provides a “facially legitimate and bona fide” justification that satisfies any constitutional scrutiny that applies. Louhghalam v. Trump, Civ. Action No. 17-10154-NMG,
Order 18-19 (D. Mass. Feb. 3, 2017); see id. at 10-11, 15-16.

* * *

1. As an initial matter, the State cannot challenge the denial of entry or visas to third-party liens. It is well-settled that a State lacks authority to sue “as the representative of its citizens” to protect them from the operation of federal law. Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923); South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966)….

2. Even if it could establish standing and a right of judicial review, the State would be unlikely to succeed on the merits of its claims.

a. Congress has granted the President broad discretion under 8 U.S.C. § 1182(f) to suspend the entry of “any class of aliens” into the United States, and independently broad discretion over the refugee program under 8 U.S.C. § 1157. The exclusion of aliens is also “a fundamental act of sovereignty * * * inherent in the executive power to control the foreign affairs of the nation.” …

b. The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality based distinctions in 8 U.S.C. § 1152(a)(1)(A). But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry. It also has no application at all to aliens who hold or seek nonimmigrant visas, such as student visas or work visas. And § 1152(a)(1)(B) permits, as here, a temporary suspension of entry pending completion of a review and revision of procedures for processing visa applications….

c. The State asserts that the Order violates the constitutional rights of lawful permanent residents (LPRs). Response at 10, 15 & n.3, 16. But the Order does not apply to LPRs. Exhibit D. It applies only to aliens who lack LPR status. And most of those aliens are outside the nited States and have never been admitted to this country. The Supreme Court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon v. Plasencia, 459 U.S. 21, 32 (1982)…..

d. The State’s constitutional challenges lack merit.

i. The State first asserts that the Order violates the Establishment Clause and equal protection principles because it was assertedly based on animus against Muslims. That is incorrect. There are two separate aspects of the Order challenged here, and both are neutral with respect to religion. First, Section 3(c) temporarily suspends entry of aliens from seven countries previously identified under 8 U.S.C. § 1187(a)(12). Those countries were identified by Congress and the Executive Branch as being associated with a heightened risk of terrorism.


Government Reply in Support of Stay – 9th Circuit – Trump Immigration Executive Order by Legal Insurrection on Scribd