It was a lively but technical hearing on an issue that has gripped much of the country’s attention—and that of foreign allies and Middle East nations—for the past week.
Issued without warning on January 27, a week after Trump took office, the executive order (EO) disrupted travel and drew protests at the nation’s airports by suspending entry for people from seven predominantly Muslim countries and limiting the nation’s refugee program.
No matter how the 9th US Circuit Court of Appeals rules—in an order that is expected within days—an appeal to the US Supreme Court (SC) is likely. That court remains short-handed and could deadlock. A 4-4 tie in the SC would leave the appeals court’s ruling in place.
“This is a traditional national security judgment that is assigned to the political branches,” said August E. Flentje, the Justice Department’s lawyer, who defended the travel ban. He urged the court to issue an emergency stay, saying the EO was plainly constitutional and beyond the power of the court to second-guess.
Later, Judge Michelle T. Friedland pressed Flentje on that point. “Are you arguing, then, that the president’s decision in that regard is unreviewable?” Friedland asked.
Flentje paused. Then he said yes.
Several courts around the nation have blocked aspects of Trump’s order, but the broadest ruling was the one at issue in Tuesday’s arguments in front of the 9th Circuit.
The three-judge panel was considering an earlier ruling by Judge James Robart of the US District Court in Seattle, which allowed previously barred travelers and immigrants to enter the country.
Another judge, Judge William C. Canby Jr., asked, “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’”
Flentje said the two states, Washington and Minnesota, that have sued over Trump’s EO would be powerless to challenge such a hypothetical. He added others might be able to sue on religious discrimination grounds.
The attorney for Washington state, Noah G. Purcell, fared little better in fending off questions from Judge Richard R. Clifton, who said the states’ evidence of religious discrimination was thin.
The case, State of Washington v. Trump, is in its earliest stages, and the question for the appeals court on Tuesday was a narrow one: Should it stay Robart’s temporary restraining order and reinstate the travel ban while the case proceeds?
The argument, which lasted about an hour, was conducted over the telephone and was live-streamed on the web site of the appeals court. In a media advisory issued before the argument, the court said that “a ruling was not expected to come down today, but probably this week.”
The government also was pressed about whether the EO was supported by evidence of real and new threats.
“Has the government pointed to any evidence connecting these countries to terrorism?” asked Friedland, who was appointed by President Barack Obama.
Flentje said the government had not had an opportunity to present evidence in court given the pace of the litigation.
With that, Friedland responded that the government’s appeal might be premature.
Still, Flentje said the travel ban was well within Trump’s legal authority. A federal statute specifically gave presidents the power to deny entry to people whose presence would be “detrimental to the interests of the United States,” he said.
He added that the court should not probe Trump’s motives, confining itself instead to “the four corners of the document.”
“It’s not an order that discriminates on the basis of religion,” Flentje said.
Purcell, the Washington state attorney, responded that the underlying purpose of the executive order was based on religious discrimination. As a candidate, Purcell said, Trump had “called for a complete ban on the entry of Muslims into the country.”
More recently, Trump has said he meant to favor Christian refugees. “The court can look behind the motives,” Purcell said.
As he closed his argument, Flentje, perhaps sensing that he was unlikely to achieve a complete victory, offered the court a middle ground. He asked, at a minimum, for the court to reinstate the part of the order that applied to people who have never been in the US, calling this a “really key point.”
Reading from a brief, he said that at most the EO should be blocked as to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”
Clifton said the administration might be in a better position to narrow its EO. “Why shouldn’t we look to the executive branch to more clearly define what the order requires?” he asked.
Purcell also said it was hard to tell precisely what distinctions the government meant to draw. “They’ve changed their mind about five times” since the EO was issued, he said.
Friedland said that if the order violated the Constitution’s ban on government establishment of religion, the court could block it completely.
But Clifton, who was appointed by President George W. Bush, said that only a small fraction of the world’s Muslims were affected by the order, suggesting that he was unconvinced that its effect was religious discrimination. Clifton added that the seven countries covered by the order “are a concern from a terrorism perspective.”
The judges also questioned whether the two states that brought the challenge had suffered the sort of direct and concrete harm that gave them standing to sue.
The SC has said that states suing the federal government to defend their interests are entitled to “special solicitude in our standing analysis”.
In 2015 an appeals court ruled that Texas had standing to sue the Obama administration to challenge an immigration initiative. But the case did not seem likely to stall on the threshold issue of standing. Canby, who was appointed by President Jimmy Carter, appeared to indicate that the harm to state universities was enough to meet that standard.
Nor were the judges much interested in another technical question pressed by Purcell.
Robart issued a temporary restraining order, an interim measure, and Purcell argued that it was not subject to appeal. In court papers, the Justice Department argued that the order amounted to a preliminary injunction, which can be appealed.
Proceedings before Robart are continuing. On Tuesday he asked for briefs on the question of whether he should issue a preliminary injunction.
Image credits: Jim Wilson/The New York Times