Federal judges grilled lawyers on both sides of President Trump’s immigration and refugee executive order in an hourlong hearing Tuesday, as they weigh whether the order should be reinstated.
The San-Francisco based 9th U.S. Circuit Court of Appeals is debating whether it should lift a temporary restraining order freezing Trump’s travel ban while larger lawsuits challenging the order’s constitutionality proceed.
The three-judge panel hearing the case comprised Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, a Barack ObamaBarack Hussein ObamaAbrams targets Black churchgoers during campaign stops for McAuliffe in Virginia Virginia race looms as dark cloud over Biden's agenda The root of Joe Biden's troubles MORE appointee.
Lawyers for each side had 30 minutes to make their case in a conference call with the judges that was broadcast live online and received heavy media coverage.
Washington state Solicitor General Noah G. Purcell urged the judges to uphold a lower court’s ruling and continue suspension of Trump’s order as lawsuits make their way through the legal system.
The states argue in part that the order violates the Establishment Clause of the First Amendment, which prohibits the government from favoring one religion over another.
The judges, particularly Clifton, pressed Purcell to back up that claim.
"I'm not persuaded," Clifton said. The countries targeted "encompass only a relatively small percentage of Muslims."
The executive order bans people from Iraq, Iran, Syria, Yemen, Libya, Sudan and Somalia, all predominantly Muslim countries, from entering the U.S. for 90 days and halts the United States's refugee resettlement program for 120 days, while indefinitely suspending resettlement for refugees from Syria.
Purcell said states just needed to prove the order was motivated by a desire to discriminate against Muslims, citing Trump's remark in December 2015 about a "total and complete shutdown on Muslims entering the United States."
"There are statements that are rather shocking evidence of intent to discriminate against Muslims … from the president and his top advisers," Purcell said.
Purcell said it is "remarkable" to have this much evidence of intent before the official pre-trial process known as discovery, but Clifton seemed unconvinced by his arguments and lack of hard proof, pointing to foreign and immigration policy that treats citizens from certain nations differently. He compared U.S. policy toward North Korea and France as an example.
August Flentje, representing the Trump administration as special counsel for the Department of Justice, was asked near the end of the hearing by Friedland whether they should allow the case to proceed to discovery, to see whether Trump’s comments were really motivated by anti-Muslim sentiments.
He grew heated and said it's "extraordinary" to second-guess the president "based on newspaper articles."
But Clifton asked whether he denies those statements were made.
"No," Flentje replied.
The main points of the administration’s argument are that states do not have legal standing to bring the lawsuit and that it is within the president’s broad legal authority to protect the country's national interest with respect to the entry of aliens or refugees.
Flentje described the ruling blocking the executive order as "over broad" and said it should be immediately stayed, even if the court takes issue with the executive action itself.
Purcell made the argument that the order harms state residents, employers and educational institutions by separating families and damaging the economy with diminished tax revenues. But the plaintiffs also pointed out that the burden is on the administration to prove that not reinstating the ban would "cause irreparable harm."
The judges seemed to signal that the states do have grounds for a lawsuit.
"Sure they can," Clifton said when Flentje asserted that states don’t have legal standing to challenge the denial of visas.
The judges wrestled with the scope of Trump’s authority under the defense’s argument, and Canby repeatedly pressed Flentje on whether a state could challenge an order that banned Muslims outright.
"That's not what this order does," Flentje said.
"I know. Could he? Would anyone be able to challenge that?" Canby asked.
"That’s not what the order does," the lawyer said again.
Clifton chimed in, saying it's important because it speaks to whether states have standing to bring a lawsuit.
Flentje conceded that if the executive order said "no Muslims," there could be questions about its constitutionality but said "this is a far cry from that situation.”
Judges also brought up the messy rollout of the immigration order, which sparked confusion, chaos and protests at airports around the country. It was unclear at first whether the policy applied to legal permanent residents, and some travelers who were en route to the U.S. when the ban was signed were detained and denied entry upon landing.
The administration, which has since clarified that the order does not apply to legal residents, argued that the restraining order should “at most” be limited to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”
Clifton asked why the administration doesn't instead issue a new executive order to clarify. He questioned whether courts have the authority to interpret the policy so that it doesn't include legal residents without more specific language from the White House.
Judges on the panel pressed Flentje on whether there is any real evidence that the countries outlined in the order pose a real risk for terrorism and asked for examples of federal offenses from visa holders from the seven targeted nations.
Flentje said those states were identified by Congress and the Obama administration as countries of concern, but said there was no evidence in the record.
"It's pretty abstract," one judge said.
Flentje said of the legal proceedings: "These things are moving pretty fast."
Friedland acknowledged the pressing nature of the case and said the court will issue a decision "as soon as possible." The court has said a ruling is likely to come this week.
The decision will serve as a key test for the controversial policy that is quickly working its way through the courts. Either side could ask the Supreme Court to step in after the ruling comes down.