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u.s. 9th circuit court of appeals decision on trump travel ban is expected this week

u.s. 9th circuit court of appeals decision on trump travel ban is expected this week News Article With The full text news. The Resource Link is down the post and you can View this News Article in the source page.



u.s. 9th circuit court of appeals decision on trump travel ban is expected this week

in making the case to reinstate president trump's executive order on immigration, attorneys for the department of justice have zeroed in on the chief executive's authority to decide issues of national security.

that power, they argued in court papers, is sacrosanct and should not be challenged, as it was by the judge who issued a sweeping emergency order last week that halted the travel restrictions.

“judicial second-guessing of the president’s determination,” the lawyers wrote in a brief, “would constitute an impermissible intrusion on the political branches’ plenary constitutional authority over foreign affairs, national security, and immigration.”

but in the lead up to the 9th circuit court of appeals’ hearing tuesday to decide whether to lift the hold, experts on national security law questioned that line of argument, saying it was too broad-- and legally tenuous.

while federal courts generally defer to the president on issues of national security, that deference is not unlimited, legal scholars said.

the tendency by judges not to question the president on national security issues is rooted in the belief that the president, aided by national security advisors and the wealth of information at their disposal, is in the best position to make such decisions, said matt waxman, a national security law expert at columbia university.

“but i’d argue that is a customary practice that is heavily reliant on the credibility of the executive branch,” said waxman, who served on the national security council and in the state department under president george w. bush.

trump, waxman said, “squandered a lot of that credibility” with his “wild and shifting claims about national security” and his unorthodox decision not to seek input from national security experts before rolling out the travel ban.

“i think it is quite possible and even likely the courts will not show the president the same level of deference they have shown previous presidents on national security,” he said.

shirin sinnar, a national security expert at stanford law school, echoed waxman.

“it is a unique situation here," she said. "we know national security agencies were sidelined, so it is hard to see how this idea of the executive branch being entitled to deference would apply.”

and stephen vladeck, a law professor at university of texas, said: “the problem with the government’s argument is it’s breadth.”

the courts increasingly have been willing to wade into issues of national security over the past 15 years, pushing back on efforts by the executive branch to make unilateral decisions, vladeck said. he pointed to habeas corpus cases filed on behalf of detainees held at the government’s guantanamo bay detention facility.

this post was edited to correct the quote from shirin sinnar. she referred to multiple national security agencies, not the national security agency.