Judges grill both sides in hearing about travel ban

Panel delves into broad legal issues

SAN FRANCISCO — President Donald Trump’s travel ban faced its toughest test yet Tuesday as a panel of appeals court judges hammered away at the administration’s claim that the ban was motivated by terrorism fears while also directing pointed questions to an attorney challenging the executive order on grounds that it unconstitutionally targeted Muslims.

The contentious hearing before three judges on the San Franciscobased 9th Circuit Court of Appeals focused narrowly on whether a restraining order issued by a lower court should remain in effect while a challenge to the ban proceeds. But the judges also jumped into the larger constitutional questions surrounding Trump’s order, which temporarily suspended the nation’s refugee program and immigration from seven mostly Muslim countries that have raised terrorism concerns.

The hearing was conducted by phone — an unusual step — and broadcast live on cable networks, newspaper websites and various social media outlets. It attracted a huge audience, with more than 130,000 alone tuned in to the court’s YouTube site to hear audio.

Judge Richard Clifton, a George W. Bush nominee, asked an attorney representing Washington state and Minnesota what evidence he had that the ban was motivated by religion. The two states are suing to invalidate the ban.

“I have trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected.”

Only 15 percent of the world’s Muslims are affected, the judge said, citing his own calculations. He added that the “concern for terrorism from those connected to radical Islamic sects is hard to deny.”

Noah Purcell, Washington state’s solicitor general, cited public statements by Trump calling for a ban on the entry of Muslims. He said the states did not have to show every Muslim is harmed, only that the ban was motivated by religious discrimination.

Clifton also went after the government’s attorney, asking whether he denied statements by Trump and former New York City Mayor Rudolph Giuliani, who said recently that Trump asked him to create a plan for a Muslim ban.

August Flentje, who argued the case for the Justice Department, Flentje did not dispute that Trump and Giuliani made the statements.

Clifton said he understood if the government argued that statements by Trump and his advisers should not be given much weight, but he said they are potential evidence in the case.

The government asked the appeals court to restore Trump’s order, saying that the president alone has the power to decide who can enter or stay in the United States. Several states insist that it is unconstitutional.

Flentje said the court could exempt people who have previously been admitted to the U.S., but keep it in place for people who have not.