Long legal fight looms over limits of presidential power

With what by legal standards was lightning speed, the judicial branch responded to President Trump’s immigration order over the weekend, telling the president he had moved too fast in barring people from seven mostly Muslim nations from entering the United States.

But the court orders Saturday and Sunday, from judges in at least four cities, were just the initial steps in litigation that may last for years.

The orders were provisional, aimed at maintaining the status quo. They were limited in scope, applying only to people on their way to the United States or in the United States. They did not rule on the larger question of whether Trump’s executive order was lawful.

They were a signal that the federal judiciary stands ready to assess the limits of presidential power over immigration policy. But they gave only the most preliminary hints about whether the courts will strike down part or all of Trump’s executive order.

Still, leaders of civil-liberties groups were savoring their victories in these early skirmishes.

“The courts can serve as a bulwark against these excesses,” said Anthony D. Romero, executive director of the American Civil Liberties Union, which represents the plaintiffs in one of the cases. “Litigation is going to be a key tool for either undoing these policies or slowing them down.”

In a statement issued early Sunday, the Department of Homeland Security said it would comply with the court orders. But the department added that little had changed.

“The president’s executive orders remain in place — prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety,” the statement said. “No foreign national in a foreign land, without ties to the United States, has any unfettered right to demand entry into the United States or to demand immigration benefits in the United States.”

Refugee advocates and civil libertarians said Sunday that thousands of volunteer attorneys had mobilized since Friday, often showing up at airports on their own.

Officials at individual airports have been handling cases differently, with some detaining people and others letting them go.

The four cases — in Boston, Brooklyn, Seattle and Alexandria, Va. — will move forward in the coming weeks, with briefs and hearings over whether to make the bans on removing the travelers more permanent. At the same time, the Trump administration may appeal the orders to federal appellate courts.

David Cole, the ACLU’s legal director, said the order from Judge Ann M. Donnelly of U.S. District Court in Brooklyn, which issued a nationwide injunction, was an important first step.

“Making it stick will require both making sure that it’s being followed at borders around the country and upholding it on appeal,” he said.

While the government has released some of the plaintiffs in the four cases, others are being held while the cases move forward.

It is possible that one of the four cases will definitively resolve an important aspect of the legality of Trump’s order. But the cases were filed very quickly, and civil-rights litigators generally like to locate ideal plaintiffs and hone their legal theories before filing test cases that could turn into legal landmarks.

Donnelly heard oral arguments at a hastily arranged session about 7:30 p.m. Saturday. An attorney from the Justice Department had to call in for the hearing.

Donnelly was appointed to the federal bench in 2015 by President Obama. The Senate confirmed her 95-2, with strong GOP support.

Donnelly issued her stay about 9 p.m. Saturday. While it is temporary, and does not lock in her longer-term decision expected in February, it shows her skepticism about at least part of the Trump order.

“The petitioners have a strong likelihood of success in establishing that (their) removal … violates their rights to due process and equal protection guaranteed by the United States Constitution,” Donnelly wrote.

In Boston, for example, U.S. District Judge Allison D. Burroughs and U.S. Magistrate Judge Judith Gail Dein Sunday issued a related temporary restraining order blocking detention or deportation of people covered by Trump’s order. The judges’ action is in effect for seven days. Burroughs was appointed by Obama.

Late Saturday, Virginia-based federal judge Leonie Brinkema, a former federal prosecutor appointed by President Clinton, issued a more limited ruling, blocking the deportation of lawful permanent U.S. residents held at Dulles International Airport outside Washington.

U.S. District Judge Thomas Zilly of Seattle, who was appointed to the federal bench by President Reagan, also blocked specific deportations.

Despite the court orders, lawyers reported Sunday that new arrivals were still being handcuffed, questioned about their beliefs and detained for hours without legal counsel.

Attorneys said Atlanta and Chicago airport-based officials released some people from detention, while officials at Los Angeles and San Francisco airports, initially, did not.

Lawyers reported that government attorneys in some cases were not answering their phones. The advocacy groups listed several specific cases of authorities not complying with judicial orders to halt deportations and, in some cases, to release the passengers or at least provide them access to lawyers.

There were stories of people being handcuffed, asked about their beliefs and held without legal counsel; in some cases, authorities tried to coerce travelers into surrendering their green cards or accepting voluntary departures.

Among the concerns of activists on the call:

• Lawyers at Dulles International Airport said they still hadn’t been able to speak to detained travelers, in violation of a federal- court ruling ordering attorney access.

• A young Iranian woman in the United States on a Fulbright program was forced onto a Ukrainian plane for deportation until an eleventh-hour reprieve came through and “they literally turned the plane around while it was taxiing” and allowed her to stay, said Becca Heller, director of the International Refugee Assistance Project.

• A 17-year-old Afghan orphan whose entire family had been killed in a land-mine explosion was scheduled to fly to a foster family in Seattle after years of awaiting resettlement. Even though Trump’s order doesn’t include Afghan citizens, the boy was barred from boarding his flight.

“There’s no method to this madness,” Heller said.

In Dallas, airport authorities announced that all arriving passengers who had been detained were being released and would be reunited with their families “at an off-site location.”