Facing a looming deadline, the state of Texas has joined the legal battle over President Donald Trump’s beleaguered travel ban, which an appeals court last week kept suspended as the litigation over its ultimate legality moves forward.
Ken Paxton, the state attorney general, filed a friend-of-the-court brief on Wednesday in the U.S. Court of Appeals for the 9th Circuit supporting the president’s position in the case ― thus making Texas the first state to side with the Trump administration claim that the executive branch has legal authority to exclude from the country immigrants and refugees traveling from certain Muslim-majority countries.
“Congress has delegated to the Executive Branch significant authority to prohibit aliens from entering the country, and the challenged Executive Order is a lawful exercise of that authority,” read the Texas brief. “Plaintiffs’ lawsuit presents no basis to enjoin the Executive’s exercise of the power delegated to it by Congress.”
Last week, the states of Washington and Minnesota successfully convinced the 9th Circuit to uphold a lower court’s ruling that blocked Trump’s entire executive order on immigration from being enforced nationwide. Ahead of that ruling, a coalition of 17 states plus the District of Columbia had filed a brief supporting those states in the appeal.
The appeals court is now weighing whether to reconsider the ruling, and has given the Department of Justice and the two plaintiff states until Thursday to present written arguments on why the 9th Circuit should or shouldn’t rehear the dispute.
In its filing Wednesday, Texas said the court should ― in part because the three-judge panel that kept the ban on hold misapplied constitutional precedent and did not analyze immigration statutes that give Trump the power to revoke visas and suspend the entry of foreign-born nationals for national security purposes.
“The injunction is contrary to law, and it threatens amicus’s interests by keeping the federal government — under a statutory regime crafted by the States’ elected representatives in Congress — from having the latitude necessary to make policy judgments inherent in this country’s nature as a sovereign,” lawyers for Texas wrote in their brief.
Notably, Texas only cites in passing a multi-state case it led against the Obama administration over a deferred-action program for the undocumented parents of children who are American citizens or legal permanent residents. Thanks to that challenge, the program never got off the ground and remained stuck in the courts until the end of the prior administration.
“The law makes it very clear that the president has discretion to protect the safety of the American people and our nation’s institutions with respect to who can come into this country,” Paxton said in a statement. “The safety of the American people and the security of our country are President Trump’s major responsibilities under the law.”
Jason Steed, a Texas appellate lawyer who has been following the legal challenges to Trump’s travel order, noted the apparent disconnect between Texas’ stance in this case and the one it took against the Obama policy.
“At first glance it does seem contradictory to say the Obama administration didn’t have power to prioritize deportations in a way that favored or protected children, but the Trump administration does have power to prioritize denials-of-entry in a way that disfavors and even targets Muslims,” Steed said. “And I’m sure judges will want to hear about how these two positions can be reconciled.”
Independent of whether the 9th Circuit agrees to reconsider last week’s ruling, U.S. District Judge James Robart, the judge who on Feb. 3 first put the brakes on the travel ban, went ahead and ordered the Trump administration and the states of Washington and Minnesota to proceed to the legal merits of the controversy.
During that stage of the litigation, the two sides are expected to exchange evidentiary materials aimed at proving or disproving whether Trump’s executive order was issued for the purpose of discriminating against Muslims.