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Appeals court weighs stay of travel ban
3-judge panel likely to decide this week on Trump’s order
Judges must decide if executive order on immigration was within the president’s authority.
SAN FRANCISCO — Three federal appellate judges on Tuesday lobbed critical inquiries at those challenging and defending President Donald Trump’s controversial immigration order — the immediate fate of which now rests with the court.
The three-judge panel from the 9th U.S. Circuit Court of Appeals questioned a Justice Department lawyer about what he viewed as the limits on the president’s power, and what evidence the president relied upon in temporarily barring refugees and citizens of seven Muslim-majority countries from entering the United States.
But the panel similarly interrogated the state of Washington’s solicitor general, who is challenging the president’s directive, over what evidence he had to demonstrate religious discrimination and whether a lower court judge’s freeze on the ban was too broad.
The court said it expects to make a decision “probably this week,” and Judge Michelle Friedland promised rapid consideration. The ruling could potentially affect tens of thousands of travelers whose visas were revoked by the initial executive order, then restored after U.S. District Court Judge James Robart in Seattle put a nationwide stop to it.
The issue of whether the order is allowed to remain in place while legal challenges continue will likely end up at the U.S. Supreme Court. But it will be harder for the Trump administration to prevail at the high court if the appeals court rules that a nationwide halt is warranted.
The broad legal issue is whether Trump acted within his authority in blocking the entry of people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, or whether his order essentially amounts to a discriminatory ban on Muslims. The judges must also weigh the harm the ban imposes, and whether it is proper for them to intervene in a national security matter on which the president is viewed as the ultimate authority.
Justice Department lawyer August Flentje argued Tuesday that the order was “well within the president’s power,” asserting that Congress and a previous administration had designated the seven affected countries as having problems with terrorism — albeit in a different context.
Some of the judges seemed wary of that claim.
Friedland, appointed by President Barack Obama, asked Flentje if the government had “pointed to any evidence connecting these countries with terrorism?”
Judge Richard Clifton, a President George W. Bush appointee, noted that the government already had processes in place to screen people coming from those countries and asked, “Is there any reason for us to think that there’s a real risk or that circumstances have changed such that there’s a real risk?”
“The president determined that there was a real risk,” Flentje responded.
Washington state Solicitor General Noah Purcell argued that the government was essentially asking the court to “abdicate” its role as a check on the executive branch, and he asserted that reinstating the ban would “throw the country back into chaos.”
But Purcell, too, faced critical questions.
Clifton said he was having “trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected” — a critical point, as the state is trying to demonstrate that Trump’s order is intentionally discriminatory and runs afoul of the Constitution.
Purcell pointed to public statements from the president and his allies.
Former New York City Mayor Rudy Giuliani, for example, recently said, “So when (Trump) first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ”
Flentje disputed that the order was a Muslim ban, and he said the judges should limit their consideration to the executive order.
Whichever side loses is sure to take the fight to the Supreme Court. That traditionally has been solid ground for the president. Justices often defer to the president on matters of immigration and national security, because of his constitutional powers and an additional grant of authority from Congress.
The politically divisive fight comes as the Supreme Court remains short-handed following the death of Justice Antonin Scalia nearly a year ago; the four Democratic-appointed liberals and four GOP-appointed conservatives often split.
Trump said at a White House event Tuesday that he was prepared to elevate the dispute as needed.
“We’re going to take it through the system,” Trump said. “It’s very important for the country ... We’ll see what happens. We have a big court case. We’re well represented.”
Flentje did offer a sort-of compromise for the judges Tuesday, saying they could limit the lower judge’s ruling to foreigners previously admitted to the country abroad now or those who wished to travel and return to the U.S. in the future. Purcell countered they had not explained how they would practically implement such an order.
In addition to Clifton and Friedland, the case was heard by William Canby, a President Jimmy Carter apointee. The hearing was conducted via telephone, with Friedland listening from San Jose, Calif., Canby from Phoenix and Clifton from Honolulu.
If those judges turn down the administration’s appeal and the matter moves immediately to the Supreme Court, the argument would be only on the temporary restraining order, and it would require five justices to reverse the lower court’s actions.