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 against citizens of seven Muslim-majority countries.
The hearing conducted by telephone contained moments of high drama as one of Trump’s signature policies is challenged by two states and numerous advocacy groups.
The Trump administration argued the courts have improperly inserted itself into the national security sphere.
“This is a traditional national security judgment that is assigned to the political branches and the President,” August Flentje, special counsel to the assistant attorney general at the Justice Department, told the panel of judges from the Ninth Circuit Court of Appeals.
Flentje faced skeptical questioning from the judges, who pressed the DOJ lawyer about what evidence the government is presenting that the travel ban is necessary.
Judge Michelle T. Friedland out of the gate asked if the government could point to any evidence “connecting these countries with terrorism.”
And Judge Richard R. Clifton seemed sympathetic to the fact that the states have the standing, or ability, to bring the suit against the administration.
Clifton called the government’s argument “abstract,” noting there are existing procedures to vet individuals for visas.
Washington state Attorney General Noah Purcell, representing his state and Minnesota, which are challenging the Trump executive order, defended the role of the courts.
“It has always been the judicial branch’s role to say what the law is and serve as a check … has never been more important than it is today,” he said.
If the court were to lift the injunction it would throw the country back into “chaos,” he said.
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, Purcell said.
But Judge Clifton also was skeptical on 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.
Clifton also wondered about whether the injunction could be limited to people who were in the United States or would have a connection to the US.
Religious ban?
All three judges pressed Flentje, the DOJ lawyer, on whether the President could simply say we’re not going to let in any Muslims.
They asked: “Could he do that?” and “Would anyone be able to challenge that?”
Flentje repeatedly argued, “that’s not the order.”
But Clifton continued to press, saying, “We’d like to get to an answer of that question.”
Eventually, Flentje capitulated and said a US citizen with a connection to someone seeking entry might be able to challenge.
Later, Purcell was challenged by the panel, when it was raised that only a relatively small percentage of Muslims hail from the seven banned countries, leading to the question of how can he show the executive order shows an intent to discriminate against Muslims when it doesn’t even target the majority of Muslims.
Purcell argued: “You don’t have to prove it harms every Muslim — you just need to show the action was motivated in part by animus.”
“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.
Trump’s tweets at judge
Friday, Judge James Robart of the US District Court for the Western District of Washington suspended key parts of the executive order nationwide Friday, clearing the way for resumed travel from the seven countries. The 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.
In response, Trump fired off two tweets in response attacking the judge. In one he referred to Robart as a “so called” judge. In another, he said, “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
Tuesday’s hearing is only on the question of the injunction, not on the constitutionality of the executive order. A ruling is expected later this week, according to the court.
And no matter what its ruling, the loser is likely to appeal to a larger panel of judges on the Ninth Circuit or go straight to the Supreme Court.
Hearing by phone
Three judges of the Ninth Circuit Court of Appeals — two appointed by Democratic presidents, one by a Republican — are conducting the hearing by telephone.
The judges are: William C. Canby Jr., an appointee of President Jimmy Carter; Friedland; who was appointed by President Barack Obama; and Clifton, an appointee of President George W. Bush.
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.”
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