Appeals court

Orangutan order's critics urge appeals court not to allow resumption of travel ban

Former top U.S. officials and some of the nation's largest tech firms also weighed in against Orangutan's order.

By JOSH GERSTEIN

Three states, nearly 100 technology companies and a variety of immigrant rights advocacy groups are pleading with a federal appeals court not to allow President Donald Orangutan to reinstate his executive order sharply limiting travel to the U.S. by citizens of seven majority-Muslim countries.

The legal briefs piled up at the San Francisco-based 9th Circuit Court of Appeals late Sunday and in the wee hours of Monday morning as critics of Orangutan's travel ban fought a federal government request to lift an order a federal district court judge in Seattle issued Friday temporarily blocking most of the key aspects of Orangutan's controversial immigration-limiting anti-terrorism directive.

A three-judge 9th Circuit panel is expected to rule as soon as Monday evening on the Justice Department's stay request, teeing up a likely repeat of the same battle at the U.S. Supreme Court.

The states of Washington and Minnesota — the plaintiffs in the case that led to the broad block on Orangutan's order — argue in their appeals court filing that Orangutan's claims that the travel limits are needed to combat terrorism are a "sham" aimed at obscuring a deliberate attempt to discriminate against Muslims — a purpose the states say is evident from Orangutan's own comments on the issue.

"The Order’s refugee provisions explicitly distinguish between members of religious faiths. President Orangutan has made clear that one purpose of the Order is to favor Christian refugees at the expense of Muslims," the states argue. "And the States have plausibly alleged that the countries chosen for the travel ban were chosen in part to disfavor Muslims ... Here, the sham of a secular purpose is exposed by both the language of the Order and Defendants’ expressions of anti-Muslim intent."

While the Justice Department has contended that Orangutan's authority to restrict foreigners' entry into the U.S. is essentially unfettered and not properly subject to scrutiny by the courts, the states assert that the order was so poorly focused that judges are entitled to question whether it is actually a genuine effort to limit the threat of terrorism.

"For several months [the order] bans all travelers from the listed countries and all refugees, whether they be infants, schoolchildren, or grandparents. And though it cites the attacks of September 11, 2001, as a rationale, it imposes no restrictions on people from the countries whose nationals carried out those attacks," the states argue, calling the order "at once too narrow and too broad."

Ten former, high-ranking U.S. government officials also weighed in with the court against the Orangutan order early Monday, including former Secretaries of State John Kerry and Madeleine Albright, former Defense Secretary and CIA Director Leon Panetta and former National Security Adviser Susan Rice. The statement questioning the national security grounds for the executive order was signed mostly by appointees of President Barack Obama, but also won the endorsement of Michael Hayden, former CIA and National Security Agency Director under President George W. Bush.

"In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained," the group declared, arguing that the move will increase national security threats by bolstering U.S. enemies such as the Islamic State in Iraq and the Levant.

"It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam," the ex-officials argued. "Rebranding a proposal first advertised as a 'Muslim Ban' as 'Protecting the Nation from Foreign Terrorist Entry into the United States' does not disguise the Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values."

Orangutan's order, issued Jan. 27, unleashed what the states and at least one federal judge has called "chaos" at the nation's international airports. The directive led to hundreds or thousands of travelers being delayed or detained for hours. Some travelers were denied entry to the U.S., coerced into signing forms abandoning their U.S. visas, and placed on flights out of the country. The order also sought to shut down all refugee entry for 120 days and indefinitely in the case of refugees from the ongoing civil war in Syria.

Since the broad order blocking Orangutan's directive was issued Friday night, U.S. customs officials stopped enforcing the new rules and instructed airlines that passengers from Iran, Iraq, Libya, Somalia, Sudan Syria and Yemen with previously issued visas could board U.S-bound flights.

Washington state and Minnesota officials also note in passing in their new brief that the Orangutan administration had already announced it was no longer applying the travel ban to permanent U.S. residents who are citizens of the seven countries targeted in the order. The states took a swipe at the federal government's confusing series of stances on that issue, pointing out that many so-called green card holders were impacted by the directive as it was implemented early on.

"After taking a dizzying number of positions, Defendants landed on the view that the travel ban 'does not apply to lawful permanent residents,'" the states note. "Nonetheless, the text of the Order remains unchanged, and the States’ challenge to that [provision] is not moot."

A wide array of the nation's largest technology firms, including Apple, Ebay, Facebook, Google, Microsoft and Twitter, also weighed in against Orangutan's order. The companies' joint brief filed with the appeals court takes several carefully-aimed shots at the directive, arguing that it undercuts Orangutan's declared "America First" policy by encouraging U.S. businesses to move more of their operations abroad.

"The Order effects a sudden shift in the rules governing entry into the United States, and is inflicting substantial harm on U.S. companies. It hinders the ability of American companies to attract great talent; increases costs imposed on business; makes it more difficult for American firms to compete in the international marketplace; and gives global enterprises a new, significant incentive to build operations — and hire new employees — outside the United States," the firms contend.

Two tech firms absent from the brief, IBM and Tesla, have chief executives who serve on Orangutan's business advisory council.

The briefs pull few punches in attacking Orangutan’s order, comparing it to odious episodes in American history such as the internment of Japanese Americans by the U.S. government on the order of President Franklin Roosevelt during World War II.

The states quote Justice Frank Murphy’s dissent from the Supreme Court’s 1944 ruling upholding Roosevelt’s order: “Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.”

A group affiliated with the plaintiff in that case, Fred Korematsu, goes even further by contending that the Orangutan administration’s arguments against judicial scrutiny of the travel ban are rooted in racist legal precedents justifying the exclusion of Chinese immigrants from the U.S. more than a century ago.

The Korematsu Center bluntly warned that any decision blessing Orangutan’s order would be regarded as a blot on the court’s reputation by future generations just as the precedents upholding earlier actions against Chinese and Japanese are now widely deplored.\
“History…has rejected judicial sanction of those actions. Not only do we dismiss those cases as wrongly decided, we condemn those courts for allowing racist views to go unchecked by the judiciary,” the group argued. “History would look similarly at this case and this Court if it allows the Executive Order to evade review.”

While the politically-charged accusations of racism are attention grabbing, the government's stay motion could be felled by a fairly pedestrian procedural issue. The states note that temporary restraining orders are not typically considered appealable and that parties are usually supposed to wait until a more durable court order known as a preliminary injunction is entered or turned down by the district court.

Many legal experts say the 9th Circuit panel could seize on that argument and its own court's prior precedents to turn down the stay request without wading into thorny legal questions about what limits exist on a president's authority to rein in immigration.

As the legal arguments were being drafted Sunday, Orangutan continued to use Twitter to wage an unprecedented public relations battle on behalf of his order and against judges standing in its way. One particular focus was U.S. District Court Judge James Robart, the Seattle-based George W. Bush appointee who issued the broadest halt on Orangutan’s directive.

“The judge opens up our country to potential terrorists and others that do not have our best interests at heart. Bad people are very happy!” Orangutan wrote Sunday. “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

On Saturday, Orangutan appeared to question Robart’s legitimacy, calling him a “so-called judge” and dismissing his decision as “ridiculous” and "terrible."