ABC News(WASHINGTON) — Three judges from the United States Court of Appeals for the 9th Circuit grilled lawyers for the Department of Justice and the state of Washington Tuesday in a hearing over President Donald Trump’s executive order temporarily banning immigrants from seven majority-Muslim countries.
The case before the court centers on the Trump administration’s appeal of a nationwide temporary restraining order put in place last Friday by U.S. District Court Judge James Robart in Seattle. The executive order also placed a hold on worldwide refugee admissions and indefinitely blocked Syrian refugees from entering the U.S.
The administration asserts that the restraining order is “vastly overbroad” and an improper judicial encroachment on the authority of the president.
Thousands of people tuned in to listen to an audio-only live stream of the hearing. The judges have indicated that a ruling could come as soon as Wednesday.
Arguing for DOJ was August Flentje, special counsel to the assistant attorney general, Civil Division. Washington state’s solicitor general, Noah Purcell, presented the case for the states of Washington and Minnesota. Nearly 100 technology companies, as well as numerous civil rights groups and lawyers, filed amicus briefs with the court in support of Washington state.
The three judges who heard the case via telephonic conference were: Circuit Judge Michelle Friedland in San Jose, (appointed by President Barack Obama), who presided over the hearing; Senior Circuit Judge William C. Canby in Phoenix (appointed by President Jimmy Carter); and Senior Circuit Judge Richard Clifton in Honolulu (appointed by President George W. Bush).
Here were the key moments from the hearing:
1. Judges Ask for Evidence to Support the Travel Ban
Arguing for the federal government that the president’s executive order was “well within the president’s power as delegated to him by Congress,” Flentje soon found himself on the defensive as Judge Friedland pressed for evidence the government relied on in determining the risks posed by immigrants from the seven majority-Muslim countries affected by the executive order.
“Has the government pointed to any evidence connecting these countries with terrorism?” Friedland asked.
“These proceedings have been moving very fast,” Flentje replied, before citing decisions made during the Obama administration to restrict nationals of the seven countries from eligibility in a visa waiver program. “And that is, I think, the strongest type of reliance, where the president is relying on Congress’s determination that these are countries of concern.”
Chiming in, Judge Canby pointed out that during last week’s hearing in Seattle, the federal government’s lawyer was unable to provide any examples of federal crimes committed in the U.S. by visa holders from the seven countries.
“Yes, your honor,” Flentje answered. “These proceedings have been moving quite fast and we’re doing the best we can,” he added, before citing an example of people from Somalia who were convicted in the United States of supporting Somali-based terror group Al-Shabaab.
“Is that in the record?” Friedland asked. “Can you point us to where in the record you are referring”
“It is not in the record,” Flentje conceded.
2. Washington Solicitor General Argues Ban Is Motivated by Religious Discrimination
Purcell, the Washington solicitor general, argued that “shocking evidence” of President Trump’s “intent to discriminate against Muslims” is proof that the travel ban is unconstitutional because it was allegedly motivated by religious discrimination.
But Purcell was repeatedly challenged on that assertion by Judge Clifton, who pointed out that the executive order affects only a small percentage of Muslims worldwide.
“I have trouble understanding why we’re supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected,” Clifton said. “And where the concern for those connected with radical Islamic sects is kind of hard to deny.”
“We’re not saying that this is a complete ban on Muslims entering the country,” Purcell said, referring to the broad exclusionary policy once promoted by Trump early in the presidential campaign.
“[But] we do not need to prove that this order harms only Muslims or that it harms every Muslim,” he continued. “We just need to prove that it was motivated by a desire to harm Muslims.”
3. Judges Ask Whether the President Could Legally Ban All Muslims
Flentje was repeatedly asked by the judges if the president could explicitly ban all Muslims from entering the country without review by the judicial branch.
“Could the president say in the order, ‘We’re not going to let any Muslims in’?” Canby asked.
“That’s not what the order does here,” Flentje replied, avoiding a direct response.
“I know, I know,” Canby said. “Could he do that?”
“That’s not what the order does,” Flentje answered twice more.
As the hearing drew to a close, Flentje conceded that “if there were an executive order that prevented the entry of Muslims, there would be people with standing to challenge that,” he said. “But that’s not the order we have here. The order is limited to the countries defined by Congress.”
“But the allegations are that … was the motivation,” Friedland said. “And plaintiffs have submitted evidence they suggest shows that was the motivation. So why shouldn’t the case proceed perhaps to discovery to see if that was really the motivation or not?”
“We’re not saying the case shouldn’t proceed,” Flentje said. “But it is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles.”
4. Solicitor General Points to the Chaotic Rollout of the Executive Order
Purcell argued that the government’s shifting interpretations of the executive order led to even legal permanent residents of the U.S. getting swept up in the chaotic first few days.
“They changed their minds about five times about whether it applies to those people in the time since the order issued — and now they say it doesn’t,” Purcell said.
And while the White Counsel Don McGahn has since issued a memo to federal agencies indicating that the ban does not apply to legal permanent residents, Purcell argued that until they change the language of the order “to make that crystal-clear,” the judges should not discount the possibility that the administration could again alter the enforcement of the ban.
Clifton later raised concerns with Flentje about the legal authority of the White House counsel to instruct other government departments about the meaning of the order. “Why shouldn’t we look to the executive branch to more clearly define what the order means rather than looking through the lens of subsequent interpretations?” he asked.
Flentje responded that “the guidance from the White House counsel is the definitive interpretation of the [executive] order and the White House counsel speaks for the president in this context.”
5. DOJ Lawyer Says Temporary Restraining Order Too Broad
Flentje argued that the temporary restraining order entered by Judge Robart last week is too broad, and said that the plaintiff states have no standing to challenge the president’s authority to enforce provisions of the order affecting refugees and visa holders who have never before been admitted to the U.S.
He argued that if the appeals court decides to allow the restraining order to remain in place, it should be modified to apply only to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future,” he said.
But Purcell argued that limiting the restraining order in that way “would not remedy the [executive] order’s violation” of the establishment clause in the Constitution “by favoring one religious group over another’s.”
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