Court panel ‘sceptical’ of ban
Group weighs limit of executive power
WASHINGTON: A Justice Department lawyer said courts should not secondguess US President Donald Trump’s targeted travel ban, drawing scepticism from a three-judge federal appeals panel weighing the limits of executive authority in cases of national security.
But even August Flentje, the Justice Department’s lawyer, sensed he was not gaining ground with that line of argument. “I’m not sure I’m convincing the court,” Mr Flentje said.
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 Mr 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 programme.
No matter how the 9th US Circuit Court of Appeals rules — in a decision that is expected within days — an appeal to the US Supreme Court is likely. That court remains short-handed and could deadlock. A 4-4 tie in the Supreme Court would leave the appeals court’s ruling in place.
The appeals court judges sometimes seemed taken aback by the assertiveness of the administration’s position, which in places came close to saying the court was without power to make judgments about Mr Trump’s actions.
“This is a traditional national security judgment that is assigned to the political branches,” Mr Flentje said.
“Are you arguing, then, that the president’s decision in that regard is unreviewable?” Judge Michelle Friedland asked a few minutes later.
Mr Flentje paused. Then he said yes. “There are obviously constitutional limitations, but we’re discussing the risk assessment,” he said.
Ms Friedland asked what those limitations were and Mr Flentje did not provide a direct answer.
Several courts around the nation have blocked aspects of Mr Trump’s order, but the broadest ruling was the one at issue in Tuesday’s arguments in front of the 9th Circuit. The panel was considering an earlier ruling by Judge James Robart of the US District Court in Seattle, which allowed previously barred travellers and immigrants to enter the country.
Judge William Canby Jr, appointed by former president Jimmy Carter, asked Mr Flentje a hypothetical question meant to probe the limits of his position. “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’”
Mr Flentje said the two states that have sued over Mr Trump’s executive order, Washington and Minnesota, would be powerless to challenge that scenario. He said other plaintiffs might be able to sue on religious discrimination grounds.
Noah Purcell, Washington state’s solicitor general, fared little better in fending off questions from Judge Richard Clifton, appointed by President George W Bush. Mr Purcell said the states’ evidence of religious discrimination was thin, adding that “the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny.”
Ms Friedland, who was appointed by former president Barack Obama, did not seem persuaded that immediate suspension of travel from the seven countries was necessary.
“Has the government pointed to any evidence connecting these countries with terrorism?” she asked Flentje.
He responded that the government had not had an opportunity to present evidence in court given the pace of the litigation. “These proceedings have been moving quite fast and we’re doing the best we can,” Mr Flentje said. With that, Ms Friedland said, the government’s appeal may be premature.
The case, State of Washington versus Mr Trump, is in its earliest stages, and the question for the appeals court on Tuesday was a narrow one: Should it stay Mr 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 streamed live on the appeals court’s website. 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”.
Mr Flentje said the travel ban was well within Mr 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 question Mr Trump’s motives, and should confine itself instead to “the four corners of the document”. He said the executive order did not, on its face, discriminate on the basis of religion.
Mr Purcell, the lawyer for Washington state, responded that the underlying purpose of the executive order was religious discrimination. As a candidate, Mr Purcell said, Mr Trump had “called for a complete ban on the entry of Muslims”. More recently, Mr Trump has said he meant to favour Christian refugees. “The court can look behind the motives,” Mr Purcell said.
As he closed his argument, Mr 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 a part of the ban against people who have never been in the United States, calling this a “really key point”. Reading from a brief, he conceded that those who could be allowed entry are “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future”. Mr Clifton said that the administration might be in a better position to narrow its executive order. “Why shouldn’t we look to the executive branch to more clearly define what the order means?” he asked. Mr Purcell also said that it was hard to tell precisely what distinctions the government meant to draw. “They’ve changed their mind about five times” since the executive order was issued, he said.