Trump Defends Order After Court Declines To Reinstate Travel Ban

One day after a federal appeals court declined to lift a temporary restraining order on President Trump's travel ban, NPR considers what happens next for travelers and in the courts.

KELLY MCEVERS, HOST:

See you in court - that was President Donald Trump's first reaction last night after a federal appeals court rejected his administration's request to reinstate a travel ban on refugees and visitors from seven majority Muslim countries. Today on Air Force One, he said he would win the legal battle. He also left open the possibility of a new executive order. He said his administration could act as early as Monday.

With us to talk about what might happen next is NPR justice correspondent Carrie Johnson. Hi, Carrie.

CARRIE JOHNSON, BYLINE: Hey, Kelly.

MCEVERS: OK, so this appeals court unanimously denies the Trump administration's request to restart his travel ban yesterday. So why did the president sound so confident today?

JOHNSON: Well, the White House actually has a lot of power on national security and a lot of power at the border. That authority comes not just from the Constitution but also federal immigration law that allows the president to ban entire classes of people who may be detrimental to American interests.

The problem, Kelly, is that Donald Trump's lawyers argued in court he has a virtual blank check. Most judges aren't buying it. They say there has to be some ability to review these executive branch actions.

MCEVERS: So in this ruling, this three-judge panel seemed to say Trump's justice department did not present evidence that there is a real national security threat from these travelers, right?

JOHNSON: Yeah, the Justice Department did not have much of an answer for whether there are specific cases where travelers or refugees have attacked on American soil. In fact, today, in a related case in Virginia, a federal judge there said, quote, "the courts have been begging you to provide some evidence, and you're not." Instead, almost every judge who's considered this travel ban has concluded that travelers - people separated from their families, from their jobs at state universities and hospitals - are the ones suffering real harm here.

MCEVERS: So for now this travel ban is on hold. Do we know how long these people will be able to keep coming into the U.S.?

JOHNSON: Well, I've been talking with lawyers handling some of the 20 or so cases out there. They've been saying February 17. It's OK to travel up until that date. I'm now hearing that date is no longer operative. People should be free to travel to the U.S. into March because that's how the case in the 9th Circuit is proceeding. That could change, though, if the Trump administration decides to seek review by the Supreme Court or the full 9th Circuit Court of Appeals.

MCEVERS: So there's some talk that the White House could just rewrite this executive order - right? - to try to fix some of the problems that the courts have identified. I mean would that make these lawsuits go away?

JOHNSON: I've been digging on this all day. The short answer is no. Here's why. Even if the White House makes clear once and for all that green card holders - these legal permanent residents - are not affected by the travel ban, it doesn't fix the problem because thousands of people - we don't know how many because the Justice Department has still not provided a list - were barred from coming into the U.S. when they had those valid permissions. Or they got here and got sent back on airplanes right away.

Kelly, there's something else, too - those allegations the travel ban is just a roundabout way of discriminating against Muslims. I called Lee Gelernt, a lawyer at the ACLU. He said they're waiting to see the new executive order, but he thinks there's still likely a basis for a case here.

LEE GELERNT: No ban is directed at one religion or benefits a religion is going to be constitutional in our view. That's simply antithetical to the First Amendment and equal protection and antithetical to American values.

JOHNSON: So, Kelly, even at this early stage, there's some evidence of discriminatory intent by President Trump and a lot more to come.

MCEVERS: That's NPR's Carrie Johnson. Thank you.

JOHNSON: You're welcome.

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