Live coverage: Appeals court hears arguments on Trump’s travel ban

An appeals court heard oral arguments Tuesday evening on whether to restore President Trump’s executive action on immigration and refugees as lawsuits proceed.


Each side had 30 minutes of argument time conducted over the phone.

Listen to the hearing in the video above. 

Hearing concludes

7:10 p.m. 

The hearing concluded, with Clifton showing more support for the Trump administration and Friedland appearing to side with the plaintiffs' argument.

Friedland acknowledged the pressing nature of the case and said the court will issue a decision "as soon as possible." 

A ruling is not expected Tuesday evening, the court said earlier in the day, but will likely come sometime this week. 

Judges address messy rollout  

7:08 p.m. 

Judges brought up the confusion at airports right after the ban was signed, when it was still unclear whether the policy applies to legal permanent residents.

Clifton asked why the administration didn't issue a new executive order to clarify the order. He questioned whether there is authority to interpret the policy so that it doesn't include legal residents.

Administration lawyer faces more questions 

7:02 p.m. 

In a short rebuttal, Flentje grew heated when pressed by Friedland on the plaintiff's submitted evidence that Trump has supported a Muslim ban in the past.

He said it's "extraordinary" to second-guess the president's authority over national security "based on newspaper articles." 

But Clifton asked whether he denies those statements were made.

"No," Flentje replied.

Judges question states' claims of religious discrimination

6:40 p.m. 

Judges pressed Purcell to back up the plaintiffs' claims that Trump's executive action amounts to religious discrimination. 
The states said they believe the order violates the Establishment Clause of the First Amendment, which prohibits the government from favoring one religion over another.

"I'm not persuaded," Clifton said. The countries targeted "encompass only relatively small percentage of Muslims."

Purcell said states just needed to prove the order was motivated, in part, 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," Purcell said. "The public statement from the president and his top advisers."
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 evidence, pointing to foreign policy that treats citizens from certain nations differently. 

Lawyer describes "irreparable harm" of travel ban

6:35 p.m. 

Purcell moved on to the merits of the underlying immigration order and said it has inflicted irreparable damage to the states through lost tax revenues, separates families and residents afraid of traveling overseas.

States' attorney begins argument

6:32 p.m. 
The attorney for Washington and Minnesota argued that the administration pursued the wrong procedural move in requesting an appeal of a temporary restraining order, which are generally non-appealable. Trump's team says that it should be treated as a preliminary injunction.

"Why should we care?" asked Clifton, who suggested that was the wrong argument to pursue.

Defense concludes argument

6:30 p.m. 

Flentje quickly ran up against his 30-minute window — he also reserved five minutes for rebuttal.

As judges continued to pepper him with questions, Flentje made his final pitch to the panel: that the injunction against the travel ban is "over broad" and should be immediately stayed, even if the court takes issue with the executive action itself. 

Judges press DOJ lawyer on reviewing Trump action

6:25 p.m. 

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.

"This is a far cry from that situation," Flentje said.

Earlier in the hearing, Friedland had asked if Trump's authority made his decision in this situation "unreviewable," to which Flentje responded: "yes."

DOJ lawyer faces questions from judges

6:18 p.m.

Judges on the panel questioned whether there was any real evidence that the countries outlined in the order posed a real risk for terrorism, and asked for examples of federal offenses from visa holders from the seven nations.

Flentje pointed back to the previous actions by Congress and the Obama administration identifying those countries as nations 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." 

A judge also shot back against Flentje's assertion that states don't have the legal standing to bring the lawsuit and challenge visa denials: "Sure they can," Judge Clifton said.

Department of Justice defends Trump's authority 

6:05 p.m.

The Trump administration kicked off its oral argument by pointing out that the seven countries targeted in the immigration order were previously identified as terrorism risks by Congress and the executive branch, and that it is in the president’s broad legal authority to protect the national interest.

Hearing gavels in

6 p.m. 

A three-judge appeals court panel in San Francisco began hearing oral arguments over whether to restore President Trump's executive action on immigration and refugees while lawsuits proceed. 
The hearing is being conducted by phone. 

After Trump's temporary travel ban was put on hold by a federal judge in Washington state, the administration asked the United States Court of Appeals for the Ninth Circuit to lift the temporary travel ban.

No matter what the decision, the issue is likely to head to the Supreme Court. 

The three-judge panel hearing the case comprises Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, a Barack Obama appointee.

Representing the Trump administration is August Flentje, special counsel for the Department of Justice. He is speaking first. 

The plaintiffs are represented by Washington state Solicitor General Noah Purcell.