Appeals court schedules arguments on Trump travel ban

9th Circuit orders oral arguments by telephone Tuesday afternoon on federal government’s request to overturn lower court’s restraining order

The San Francisco-based 9th Circuit Court of Appeals announced that a three-judge panel will hold an hour-long telephone argument session starting at 6 p.m. ET (3 p.m. PT.) Tuesday.

The arguments were scheduled just as the Trump administration filed a new brief arguing that national security concerns make it improper for the courts to intrude on executive branch decisions about which foreigners should be denied entry to the U.S.

The new filing warns the courts against taking “the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority,” the new government filing said.

“The potential national-security risks and harms resulting from the compelled application of procedures that the President has determined must be reexamined, for the purpose of ensuring an adequate measure of protection for the Nation, cannot be undone. Nor can the effect on our constitutional separation of powers,” the Justice Deparment argued.

The Justice Department brief backs the federal government’s motion to stay an order U.S. District Court Judge James Robart issued Friday halting several key aspects of Trump’s week-old executive order. He issued the order in a lawsuit brought by the states of Washington and Minnesota.

The brief was a lawyerly restatement of tweets Trump issued earlier this week saying that Robart and other judges could be responsible if the nation suffered a terrorist attack as a result of the decision to lift the order in which Trump banned travel to the U.S. by citizens of seven majority-Muslim countries, suspended all refugee admissions for 120 days and put an indefinite hold on Syrian refugees.

While Justice Department lawyers ask the appeals court to throw out Robart’s restraining order altogether, they also offer a back-up request to the appeals judges: rein in the order to limit its impact to foreigners who are in the U.S. or have already traveled here on valid visas.

“The State has made clear that it is seeking to protect [legal permanent residents] and other nationals from the seven identified countries who were previously admitted to the United States and are either temporarily abroad or are here now and wish to travel outside this country—not aliens who are attempting to enter the country for the first time,” the Justice Department wrote.

A 9th Circuit spokesman said the argument session would not be available to the public as it takes place but a recording would be released soon afterward.

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