Appeals court skeptical about Trump travel ban

Ruling expected soon; case likely to end up with Supreme Court.

WASHINGTON — A three-judge federal appeals panel voiced skepticism on Tuesday at the Justice Department’s broad defense of President Donald Trump’s targeted travel ban during arguments over how much power the president has to impose immigration restrictions based on national security concerns.

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 Jan. 27, just a week after Trump took office, the executive order 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 U.S. Court of Appeals for the 9th Circuit rules — in an order that is expected within days — an appeal to the U.S. Supreme Court is likely. The high court remains short-handed

and could deadlock. A 4-4 tie in the Supreme Court would leave the appeals court’s ruling in place.

Several courts around the nation have blocked aspects of Trump’s order, but the broadest ruling was the one at issue on Tuesday in the 9th Circuit.

The three-judge panel was considering an earlier ruling by Judge James Robart of the U.S. District Court in Seattle, which allowed previously barred travelers and immigrants to enter the country.

“Are you arguing, then, that the president’s decision in that regard is unreviewable?” Judge Michelle T. Friedland asked.

The Justice Department lawyer, August E. Flentje, paused. Then he said, “Yes.”

Another 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 two states that have sued over Trump’s executive order, Washington and Minnesota, 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.

Purcell said the order had harmed Washington state residents by splitting up families, holding up students trying to travel for their studies and preventing people from visiting family abroad.

Clifton said he suspects it’s a “small fraction” of the state’s residents.

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 via telephone and was streamed live on the website of the 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.”

Flentje urged the appeals court to issue an emergency stay. He said the executive order was plainly constitutional and beyond the power of the court to second-guess.

“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.

Friedland responded that the government’s appeal may be premature.

Flentje said the travel ban was well within Trump’s legal authority. A federal statute specifically gives presidents the power to deny entry to aliens 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 in a way on the basis of religion,” Flentje said. Purcell responded that the purpose of the executive order was religious discrimination. Trump has said he meant to favor Christian refugees. “The court can look behind the motives,” he said.