Washington’s lawyer ran into trouble with Judge Clifton after arguing that the order violated the Establishment Clause, which prohibits the government from favoring one religion over another. Clifton said the ban covered only seven countries, which accounted for a small minority of all Muslims. He pointed out again that the Obama administration and Congress had previously designated the seven countries covered by Trump’s ban as a worrisome source of terrorism and subject to visa restrictions. The judges pressed the state’s attorney to explain, given that, why Trump’s order amounts to a Muslim ban. “Do you assert that that decision by the previous administration and congress as religiously motivated?” asked Clifton. Purcell said no. But he said that “the president called for a complete ban on Muslims.” “Is this that ban?” Clifton asked. “No, we’re not saying this is a complete ban on Muslims entering the country,” Purcell said. Purcell said it was discriminatory and that the state’s allegations at this point of the legal procedures must be given weight. “We’re supposed to take your word for it?” Clifton asked incredulously. Friedland threw Purcell a lifeline, noting that he had submitted exhibits to back up some of his allegations.
Is it a Muslim ban? Let's look at some numbers.
According to statistics compiled by the Pew Research Center in 2010, only about 12 percent of the world’s Muslims lived in the seven countries banned under Trump’s executive order: Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen. But the vast majority of the people living in those countries — 97 percent — are Muslim.
State lawyers accusing Trump for flip-flopping on details of the ban
Noah G. Purcell, the Solicitor General for the Washington state, says the federal government has flip-flopped on how it defines the executive order and who it includes.
The Department of Homeland Security initially interpreted Trump’s ban to include lawful permanent residents or green card holders, as well as those in possession of valid U.S. visas, blocking tens of thousands of people from entering the country. In the week and a half since signing the order, the Trump administration has walked back those aspects of the ban.
But Purcell argued that if reinstated, the ban could still potentially apply to that vast group of people unless explicitly altered. “Until they change the order to make that crystal clear, they can’t just say, ‘Well now that doesn’t’ apply to them so don’t worry about it,” he said.
The lawyer for Washington state, Solicitor General Noah Purcell, is getting caught in a long debate with the judges about whether it is proper for the appeals court even to review the temporary restraining order issued by U.S. District Court Judge Robart.
The judges seem impatient with that argument.
Purcell says there could be full briefing before Robart, who first heard the legal challenge, by end of next week, and the case would then be clearer.
The three judges are pressing the government’s lawyer on whether it would be constitutional to impose an outright ban on Muslims–which Washington state says Trump’s order amounts to. constitutional.
What if President Trump just said simply, “We’re not going to let any Muslims in?” Judge William C. Canby asked Justice Department attorney August E. Flentje.
“Could he do that?” Canby continued. “Would anybody be able to challenge that?”
“That’s not what the order does here,” Flentje replied. Canby and Judge Richard R. Clifton pushed him for an answer.
Flentje said that a person impacted by such a ban could file suit. But he added, “This is a far cry from that situation.”
The judges seem to think states have legal standing to bring the suit. But remember that we’ve only heard the judges question the federal government’s lawyer. Judges are usually equal-opportunity tough questioners.
The government’s lawyer August Flentje went first, and faced a barrage of questions from all three judges.
Judge Friedland wondered whether the government was arguing that the judges could not even ask for evidence that those entering from the seven countries named in the order posed a special risk.
Judge Clifton was on the same track. He asked, “Is there any reason to think there is a real risk” or an increased risk from those countries?
Judge Canby noted that when Congress and President Obama previously noted those countries posed a special risk, restrictions on entry from those countries were enacted, and they remain. Visas are required, which gives the government a chance to check out those seeking entry.
Flentje said the president has the ultimate authority and at one point said his determination was “unreviewable.”
Friedland continued to push for more evidence of a new or increased risk. When Flentje said the case was moving fast and more evidence might be forthcoming, she wondered why the temporary restraining order should not remain in place until then.
February 7 by Abigail Hauslohner and Scott Clement
According to statistics compiled by the Pew Research Center in 2010, only about 12 percent of the world’s Muslims lived in the seven countries banned under Trump’s executive order: Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen. But the vast majority of the people living in those countries — 97 percent — are Muslim.
February 7 by Abigail Hauslohner
Noah G. Purcell, the Solicitor General for the Washington state, says the federal government has flip-flopped on how it defines the executive order and who it includes.
The Department of Homeland Security initially interpreted Trump’s ban to include lawful permanent residents or green card holders, as well as those in possession of valid U.S. visas, blocking tens of thousands of people from entering the country. In the week and a half since signing the order, the Trump administration has walked back those aspects of the ban.
But Purcell argued that if reinstated, the ban could still potentially apply to that vast group of people unless explicitly altered. “Until they change the order to make that crystal clear, they can’t just say, ‘Well now that doesn’t’ apply to them so don’t worry about it,” he said.
February 7 by Robert Barnes
The lawyer for Washington state, Solicitor General Noah Purcell, is getting caught in a long debate with the judges about whether it is proper for the appeals court even to review the temporary restraining order issued by U.S. District Court Judge Robart.
The judges seem impatient with that argument.
Purcell says there could be full briefing before Robart, who first heard the legal challenge, by end of next week, and the case would then be clearer.
February 7 by Abigail Hauslohner
The three judges are pressing the government’s lawyer on whether it would be constitutional to impose an outright ban on Muslims–which Washington state says Trump’s order amounts to. constitutional.
What if President Trump just said simply, “We’re not going to let any Muslims in?” Judge William C. Canby asked Justice Department attorney August E. Flentje.
“Could he do that?” Canby continued. “Would anybody be able to challenge that?”
“That’s not what the order does here,” Flentje replied. Canby and Judge Richard R. Clifton pushed him for an answer.
Flentje said that a person impacted by such a ban could file suit. But he added, “This is a far cry from that situation.”
February 7 by Robert Barnes
The judges seem to think states have legal standing to bring the suit. But remember that we’ve only heard the judges question the federal government’s lawyer. Judges are usually equal-opportunity tough questioners.
February 7 by Robert Barnes
The government’s lawyer August Flentje went first, and faced a barrage of questions from all three judges.
Judge Friedland wondered whether the government was arguing that the judges could not even ask for evidence that those entering from the seven countries named in the order posed a special risk.
Judge Clifton was on the same track. He asked, “Is there any reason to think there is a real risk” or an increased risk from those countries?
Judge Canby noted that when Congress and President Obama previously noted those countries posed a special risk, restrictions on entry from those countries were enacted, and they remain. Visas are required, which gives the government a chance to check out those seeking entry.
Flentje said the president has the ultimate authority and at one point said his determination was “unreviewable.”
Friedland continued to push for more evidence of a new or increased risk. When Flentje said the case was moving fast and more evidence might be forthcoming, she wondered why the temporary restraining order should not remain in place until then.
February 7 by Robert Barnes
August E. Flentje, Justice Department special counsel, tells judges that the president is proposing only a “temporary pause” in entry from countries that Congress and “the last president” have recognized as posing special risks. Judge Friedland asks if government’s position is that “we can’t even ask for evidence” of special risk from those countries.
Judge William C. Canby Jr. is in Phoenix, and Senior Circuit Judge Richard R. Clifton is in Honolulu.
The 9th Circuit is the largest circuit in the country, composed of most of the west, including Alaska and Hawaii. Telephone and remote hearings are not uncommon.
No other federal appeals courts stream live audio of arguments, reports Ann Marimow.
Supreme Court often defers to president on immigration and national security
Whichever side loses is sure to take the fight to the Supreme Court. That traditionally has been solid ground for the chief executive.
Justices often defer to the executive branch on matters of immigration and national security, because of the president’s constitutional powers and an additional grant of authority from Congress.
Congress in 1952 said the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.”
But those battling Trump’s executive order also point out that the law has been amended to ensure that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence.”
The states of Washington and Minnesota say courts must take note of Trump’s campaign promises to impose a Muslim ban and what they call changing motives for imposition of the travel ban.
Quoting another Supreme Court precedent, they say, “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
The politically divisive fight comes as the Supreme Court remains shorthanded following the death of Justice Antonin Scalia nearly a year ago; the four Democratic-appointed liberals and four Republican-appointed conservatives often split.
They faced a similar issue last term, when a Texas judge imposed a nationwide halt to an executive action from President Barack Obama that would have shielded more than 4 million immigrants in the country illegally but who met certain requirements to get work permits.
Texas and other states had challenged the order, same as in this new test from Washington, and the federal government argued that states did not have legal standing to challenge the president’s action. The federal government also argued that the court should abide by its precedents and defer to the president’s customary power over immigration.
But the justices split 4 to 4 on the issues, without revealing the specific votes or which issues had caused the deadlock.
If the 9th Circuit turns down the administration’s appeal and refuses to lift the judge’s order, the administration will almost surely move immediately to the Supreme Court.
But the argument would be only on the temporary restraining order, and it would require five justices to reverse the lower court’s actions.
If five justices do not agree to take that action, the case would return to U.S. District Judge James L. Robart to decide whether Trump’s order should be permanently enjoined. And the fight up the legal ladder would begin again.
It could take months for the case to return to the Supreme Court, giving the Trump administration time to change the order to meet judicial objections. Or it could return to a court that by then likely would be back to nine justices, including Trump’s nominee, Judge Neil Gorsuch.
What comes after this hearing?
What if the appeals court sides with the White House?
If Trump’s executive order were to be immediately reinstated, that might spark chaos similar to what occurred when it was first rolled out. Hundreds of people were detained by customs officers at U.S. airports, and some were deported. The actions sparked protests and other lawsuits across the country.
It was unclear whether U.S. officials had a plan to avoid a repeat of that scenario, though much would depend on what specifically was ordered by a court and when.
The Trump administration has been steadfast in its support of the executive order, which it says is necessary for national security. Trump tweeted multiple times his disdain for the federal judge in Washington state who put a stop to it.
What if the appeals court sides with the states?
If the federal appeals court maintains the freeze on the immigration order, then previously barred refugees and citizens from seven Muslim-majority countries can continue entering the United States.
The Justice Department, representing the Trump administration, can ask the Supreme Court to intervene. The Supreme Court, though, remains one justice short, and many see it as ideologically split 4-4. A tie would keep in place whatever the appeals court decides.
What can either side do if it loses?
Either side could request Supreme Court intervention, though it would take the votes of five justices to overturn the panel decision. The court has been shorthanded since the death of Associate Justice Antonin Scalia, and it is ideologically divided between four more liberal justices and four conservative-leaning ones.
The Supreme Court could become involved as soon as this week, if either side challenges the ruling of the appellate court.
DHS secretary: Judges ‘live in a different world than I do’
While defending President Trump’s travel ban on Capitol Hill today, Homeland Security Secretary John Kelly said the judges are considering the issue in an “academic” way.
“I have nothing but respect for our judges, but they live in a different world than I do,” he said.
Kelly testified before the House Homeland Security Committee and said that while he’s not criticizing any particular judge, that they might consider the issue in a “vacuum.”
Kelly also said that if given a second chance, he would have improved the roll out of the ban and blamed the confusion at airports on protesters.
Hearing on Trump travel ban: Updates from the federal appeals court
The U.S. Court of Appeals for the 9th Circuit is hearing arguments starting at 6 p.m. Eastern on whether to restore President Trump’s controversial immigration order.
The hearing, which will be conducted by telephone, is to review an order by a lower court judge to put Trump’s directive on hold. The judges said each side would have 30 minutes to present their arguments beginning at 6 p.m. Eastern. It is unclear how soon a ruling could follow. The hearing will be live-streamed, the clerk of court said.
Summarized by Maven Stark
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