Appeals court allows Trump team to begin vetting review
The U.S. Court of Appeals for the 9th Circuit on Monday maintained a block against most of President Trump's travel ban, but it sided with the administration on one key point that could determine whether the Supreme Court agrees to hear the case.
The unanimous ruling from a three-judge panel allows the administration to conduct an internal review of its immigration vetting procedures without blocking travel from the six majority-Muslim countries targeted by the ban. That review was the main purpose given by the White House to implement a 90-day ban on most travelers coming from Iran, Libya, Somalia, Sudan, Syria and Yemen, and a 120-day ban on all refugees.
The White House has argued it was forbidden from conducting that review in March, based on a ruling by federal District Judge Derrick Watson in Hawaii. Department of Homeland Security Secretary John Kelly told a Senate committee last week that his inability to implement the travel ban, or to conduct the internal review of vetting procedures, had left him "not fully confident" that the government could stop would-be terrorists from entering the country.
On Monday, the 9th Circuit ruled that Watson correctly blocked the bulk of Trump's executive order that threatened to ban 180 million people who live in the six targeted countries. But the panel concluded that he went too far when he ordered the government to halt its internal review, an action that the court argued would not cause any harm to anybody.
"The district court abused its discretion" by blocking the review from continuing, the panel wrote.
The Justice Department did not directly respond when asked on Monday if the administration would now begin its internal review. Instead, Attorney General Jeff Sessions released a statement saying the government still faces limitations because of the court rulings.
"Unfortunately, this injunction prevents the President from fully carrying out his Article II duties and has a chilling effect on security operations overall,” Sessions said.
The question now becomes how quickly the Trump administration can finish that review, and how quickly the Supreme Court decides whether to rule on the case once and for all. If the government acts fast or the court moves slowly, the travel ban may become unnecessary and the case may become moot.
James Norton, a former Homeland Security official under President George W. Bush, said such a review could easily take the full 90 days that the Trump administration says it needs. Trump's order calls on the Department of Homeland Security, the State Department and the Director of National Intelligence to conduct the review together. Coordinating such a massive review, Norton said, does not happen quickly.
"Ninety days is absolutely a suitable amount of time," he said. "Probably as soon as the department saw the ruling, it wouldn't surprise me if they already started considering how to move on with that plan."
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Despite the court orders that blocked the internal review, lawyers challenging Trump's travel ban, and some judges who have been involved in the legal battle, have questioned why the Trump administration hasn't made more progress.
During arguments before the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., Judge Stephanie Thacker pointed out that the internal review called for in Trump's executive orders was in full effect for nearly two months. Trump signed the first travel ban on Jan. 27. Judges blocked portions of that ban, but not the section that called for an internal review.
It wasn't until Watson blocked the second travel ban on March 15 that the internal review was blocked.
"Was any vetting done in those 50 days?" Thacker asked.
Acting Solicitor General Jeffrey Wall said the administration had done "some work" on the review during that time, but that it was too focused on the legal battle to make significant progress.
"We have read ourselves to be barred from doing that (review)," Wall said during the May hearing.