Three federal judges grilled lawyers from the Justice Department and Washington state Tuesday night as they determine whether to lift a nationwide halt against President Donald Trump’s travel ban in a lawsuit brought by two states and numerous advocacy groups.
The telephonic hearing showed moments of drama and tension with members of the Ninth Circuit Court of Appeals jousting with attorneys over the President’s use of such sweeping executive power, querying over the connection between the seven banned countries and terrorism, and launching into tough questions over where to draw the line for a showing of intentional discrimination.
From the start of the hearing, August Flentje, special counsel to the assistant attorney general at the Justice Department, repeatedly sought to emphasize the government’s position that US District Court Judge James Robart improperly inserted himself into the national security sphere by suspending the President’s executive order last Friday.
“This is a traditional national security judgment that is assigned to the political branches and the President and the court’s order immediately altered that,” Flentje argued.
But this blanket assertion only led to a series of rapid fire exchanges with all three judges pressing him to explain the limits of his position.
“Has the government pointed to any evidence connecting these countries with terrorism,” asked asked Judge Michelle Friedland.
“The district court’s decision overrides the President’s national security judgment about the level of risk and we’ve been talking about the level of risk that’s acceptable,” suggested Flentje.
“Are you arguing then that the President’s decision in that regard is unreviewable (by a court)?” Friedland fired back.
Flentje’s pregnant pause was eventually followed by a tentative “yes,” in response.
Clifton called the government’s argument “abstract,” noting the existing procedures to vet individuals for visas.
Trump’s executive order bars citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the US for 90 days, all refugees for 120 days and indefinitely halts refugees from Syria.
The President was kept apprised of the oral arguments by White House Counsel Don McGahn Tuesday night, CNN’s Jeff Zeleny reported.
A ruling is expected this week.
Muslim ban?
Judge William Canby picked up on this line of questioning and the extended Flentje’s logic to its most extreme conclusion: whether the President could simply say the United States will not admit Muslims into the country?
“Could he do that?” asked Canby. “Would anyone be able to challenge that?”
Flentje repeatedly suggested, “that’s not the order.”
But Judge Richard Clifton was unrelenting, saying, “We’d like to get to an answer to that question.”
Eventually, Flentje capitulated and said a US citizen with a connection to someone seeking entry might be able to challenge the executive order if that were the case.
Intent to discriminate?
While the President’s name was barely uttered during the hearing, Trump’s words were top of mind for both the attorneys and the judges.
Washington state Attorney General Noah Purcell, representing his state and Minnesota — which are challenging the Trump executive order — was pressed by Canby to explain how the executive order demonstrates a direct intent to discriminate toward Muslims when only a relatively small percentage of Muslims hail from the seven banned countries.
“You don’t have to prove it harms every Muslim — you just need to show the action was motivated in part by animus,” Purcell argued.
“There’s rather shocking evidence of intent to discriminate (in this case),” he added — alluding to statements from Trump himself, as well as an apparent comment by former New York City Mayor Rudy Giuliani, who was not referred to by name.
“I don’t think allegations cut it at this stage,” Clifton shot back.
Flentje emphasized the same during his rebuttal time.
“We’re not saying the case shouldn’t proceed. But it is extraordinary for a court to enjoin the President’s national security determination based on some newspaper articles,” Flentje said.
Flentje faced a lengthy series of questions requiring him to articulate exactly what evidence the government has to show that the travel ban is necessary.
Judge Michelle Friedland out of the gate asked if the government could point to any evidence “connecting these countries with terrorism.”
Clifton called the government’s argument “abstract,” noting the existing procedures to vet individuals for visas.
Standing
The threshold issue of the case — whether the plaintiffs have the ability to sue or legal standing — appeared accepted by at least two of the judges.
Purcell argued that the Trump administration can’t show that it will suffer irreparable harm if the injunction is allowed to remain in place, while state residents would suffer and state governments have lost tax revenue as a result of the executive order.
But Clifton also was skeptical of the state’s argument on standing, wondering how many people in Washington would be harmed by the executive order.
“I suspect it is a small fraction,” he said.
Aliens in the US v. abroad
Flentje raised a fallback argument — as in its latest court filing — suggesting if the appellate court is inclined to uphold the Seattle district court’s decision, then it must at least limit it to the class of people who have been previously admitted to the US. In the government’s view, aliens outside of the US who have never stepped foot on US soil have no constitutional right to enter the country.
The government’s argument on a limited injunction didn’t seem to get much traction.
Purcell said it wouldn’t fully address the harms of the executive order.
“It would not remedy the order’s violation of the establishment clause which harms everyone in our state … by favoring one religious group over another. It also would not fully remedy the order’s violation of the equal protection law — denying some of our residents who are here, allowing them to receive those visits and so on,” Purcell argued.
How will the court rule?
The Ninth Circuit has a reputation as one of the most liberal in the nation to the point where some Republican lawmakers have even pushed to split it up in an effort to limit its impact.
Kari Hong, an assistant professor at Boston College Law School, said Tuesday’s hearing was likely to be more technical in nature than philosophical.
“The Ninth Circuit is often called a liberal court, but the issues they have to figure out today are dry and technical ones relating to standards of review and the deference owed to the lower court,” Hong said. “Those issues will be resolved without regard to political preferences.”
CNN’s Daniella Diaz contributed to this report.
By Laura Jarrett and Ariane de Vogue