Donald Trump’s willingness to close borders of the United States to potential “terrorists” engendered a huge legal puzzle surrounding a question: How far do the US president’s powers on immigration really go?
The dispute could be headed to the Supreme Court in Washington to define the constitutional framework of the Executive order and to unify the jurisprudence.
Greater uncertainty reigns: the federal courts from the four corners of the country have given very different answers, some have even validated the decree.
For the time being, the San Francisco Court of Appeals is in charge of examining the decision of the Seattle judge James Robart, who suspended the application of the presidential decree prohibiting the entry of migrants of seven Muslim majority countries for 90 days and refugees for 120 (for Syrians the measure is indefinite).
The main claimants are the Democratic states of Washington and Minnesota (north), both bordering Canada.
Several groups have filed documents before the court to support the lawsuit against the decree, notably the powerful American Civil Liberties Union (ACLU), the Southern Poverty Law Center and the HIAS refugee advocate .
About 300 law professors and a hundred technology companies from Silicon Valley filed legal papers to support Judge Robart’s decision.
In addition another 15 states announced Monday that they sent a memorandum demanding confirmation of the decision.
On the other side are President Trump and his government, who are defended by Justice Department lawyers.
They appealed the suspension of the decree after the president described Robart as a “pseudo judge” and his decision to “scandalous.”
On Monday, the San Francisco Court of Appeals set a teleconference hearing for Tuesday at 23:00 GMT, where each party will have 30 minutes to file arguments.
Trump supports his controversial decision in the powers conferred by the Constitution of the United States. According to article 2, “the president has all the authority to handle foreign and immigration policy”.
The decree “fits into the legal exercise of presidential authority,” government lawyers said in a statement filed Monday before the San Francisco Court of Appeals.
That position is based on the article of a law adopted 65 years ago, which stipulates that the president has the power to suspend entry into the country to a category of foreigners whenever he considers the arrivals “would be detrimental to the interests” of the United States.
The government also argues that judge is under-qualified to decide on national security issues: “The courts do not have access to confidential information about the threat of terrorist organizations,” they wrote.
Opponents of the decree also appeal to the Constitution, claiming that Trump’s decision “violates fundamental principles such as freedom of movement, equality of persons and prohibition of religious discrimination”, among others.
They also consider that the law must protect minorities.
The sectors that support the suspension of Trumps decree say that “it will have negative consequences in the labor sector, education and business”.
The San Francisco appeals court could either validate Trump’s decree or confirm its suspension.
Authorities have not anticipated whether there will be any measures of detention and expulsion at airports which recently caused protests in several cities of the country and angered the international community.
But if Judge Robart’s decision is maintained throughout the country, refugees and migrants from the seven countries involved will be able to continue entering the United States.
The disagreeing party may go to the Supreme Court, which agrees to review the case will require a majority of five out of eight of its judges to overturn the San Francisco Court of Appeals decision.
The Supreme Court is divided ideologically between four conservative judges and four progressive. The ninth, appointed by Trump last week, is also conservative, but the Senate will take several months to confirm his appointment.
Protesters with posters on Saturday, February 4, 2017, against US President Donald Trump in West Palm Beach. Adam Perkins – CTN News