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DOJ defends travel ban in brief to Supreme Court

Travel ban

The Trump administration has filed a brief to the Supreme Court defending the president's revised travel ban as the exercise of the president's broad powers to exclude aliens from U.S. territory for national security reasons.

Jeffrey Wall, the acting solicitor general, argued in the brief filed Thursday that the federal appeals courts in Richmond and San Francisco that stayed the ban should "not second-guess the political branches' decisions to exclude aliens abroad."

The ban, which excludes refugees and citizens of Syria, Iran, Somalia, Sudan, Yemen, and Libya from entering the U.S., stems from President Trump's revised executive order signed in March. An earlier version, which also banned Iraqis from the U.S., was signed in January but was stymied by lawsuits. The Supreme Court ruled that the ban would be blocked in cases applying to travelers with a bona-fide relationship with people or entities in the U.S.

Two appeals courts blocked the ban from taking effect, but the Supreme Court in June ruled that much of the ban could be implemented. The Supreme Court will hear the case on Oct. 10. 

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The 4th Circuit, in Richmond, Virginia, said the ban was "rooted in religious animus" toward Muslims, relying both on Mr. Trump's campaign remarks, in which he promised to ban Muslims, and on tweets and remarks he's made since he's been president. Among those post-campaign remarks was one he made as he signed the travel ban. Wall argued that the 4th Circuit erred in concluding the president's comment as he signed the original executive order -- "we all know what that means" -- was meant to be an exclusion of Muslims. Immediately before that comment, Mr. Trump had said of the order that "this is the protection of the nation from foreign terrorist entry into the United States."

"[T]he President's passing remark is reasonably understood to refer to terrorist groups like ISIL and al Qaeda, not all Muslims," Wall argued, although he conceded, "It is at least ambiguous," and given that ambiguity, "the court erred in setting aside an Executive Order of the President based on an offhand, six-word comment made in connection with a prior directive."

The 9th Circuit, in San Francisco, said that the ban does not comply with federal immigration law, which bars discrimination based on nationality. This court also stayed parts of the ban keeping all refugees out for 120 days and cutting by over half the cap on refugees under current law. Mr. Trump cut the number of refugees to 50,000  (a number that was just reached in the U.S.), whereas the prior number was 110,000.

CBS News' Paula Reid contributed to this report

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