Judges slam travel ban defense
Justice Department called out for its ‘abstract’ evidence
Three federal appeals court judges voiced deep skepticism Tuesday about President Trump’s temporary ban on immigration from seven majority-Muslim nations, an indication that they are not inclined to reinstate it.
The U.S. Court of Appeals for the 9th Circuit panel pounced on the Justice Department lawyer representing the administration for insisting the travel ban was needed despite existing visa rules and restrictions.
The panel – two judges appointed by Democratic presidents, one by a Republican — expressed some sympathy for the government’s fallback position — that lawful permanent residents from the seven nations could be excluded from the ban. But the judges questioned whether they or administration officials could rewrite Trump’s order on the fly.
Judge Richard Clifton, who was named to the bench by President George W. Bush, voiced the most support for a potential com- promise. The others — Judges Michelle Friedland, named by President Obama, and William Canby, appointed by President Jimmy Carter — were more harsh in their appraisals of the ban.
The unusual hearing, with a live listening audience and judges spread from Arizona to California to Hawaii, dealt with the most significant test of Trump’s fledgling administration — one that pits the president’s authority to protect the nation against the rights of legal immigrants and
refugees. A spokesman for the court said a ruling is expected later this week.
It was convened only days after Trump signed the executive order, which places its most extreme restrictions on refugees and immigrants from Syria. That action was blocked last week by federal district Judge James Robart in Seattle, who would hear detailed arguments from both sides if the appeals court panel upholds his initial decision and sends the case back. And either side could appeal the panel’s ruling to the Supreme Court.
August Flentje, arguing for the government, said the seven countries selected for the travel ban — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — were identified by the Obama administration as prone to terror, giving Trump the right to ban immigrants temporarily.
“Has the government provided any evidence connecting these countries with terrorism?” Friedland, the presiding judge, asked.
“I understand the concept of that, but it’s pretty abstract,” Clifton chimed in. “It’s not like there haven’t been processes in place for dealing with people from those countries.”
The judges zeroed in on that point, repeatedly asking for instances in which travelers from the seven countries had entered the U.S. and committed acts of terrorism. Flentje said the case was moving very quickly, pleading for more time to bolster the government’s arguments at the district court level.
Washington state Solicitor General Noah Purcell raised the religious component of Trump’s ban, arguing that it violated constitutional protections by barring targeting Muslims, who make up 97% of the seven nations’ populations.
But Clifton said he saw no evidence that the order was written to target Muslims and said the countries represent only about 15% of the world’s Muslims.
“I have trouble understanding why we’re supposed to infer religious animus, when in fact the vast majority of Muslims would not be affected,” he said.
Purcell responded that Trump’s words on the campaign trail, when he called for a temporary ban on Muslims entering the country, were all the proof needed to understand the true reason behind the order.
“There are statements that we’ve quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims,” he said.
To reverse Robart’s ruling, the circuit court must show that it was decided in error, a difficult standard to meet — or at least that it was, as the government ar- gues, “vastly overbroad.”
If the panel keeps Trump’s order on hold, the last stop could be the Supreme Court. With Trump’s nominee to fill the vacant ninth seat, Neil Gorsuch, just beginning a lengthy confirmation process, the high court could decide not to hear the president’s appeal or emerge with a 4-4 tie that would keep the lower court’s ruling in place.
Legal experts said that sets up a difficult path for Trump’s Department of Justice as it tries to overturn the temporary restraining order put in place last Friday and restart the immigration ban.
“The history of these challenges to presidential actions on immigration has been a pretty sharp partisan split,” said Stephen Legomsky, professor emeritus at Washington University School of Law in St. Louis and a former chief counsel at U.S. Citizenship and Immigration Services. “I wouldn’t be surprised to see the 9th Circuit uphold the (temporary restraining order). And in the Supreme Court, I can easily imagine a 4-4 split.”
The partisan makeup of the appeals court, however, is far from a guarantee. Kari Hong, an assistant professor at Boston College Law School who has argued more than 100 cases at 9th Circuit, said the judges who will rule on Trump’s order are not likely to rule based on party lines.
Judge William Canby was appointed by Carter, but he is a former lieutenant in the Air Force’s JAG Corps, so he could be swayed by Trump’s national security arguments. And while Judge Michelle Friedland was appointed by Obama, she clerked for Supreme Court Justice Sandra Day O’Connor, who was named to the court by President Ronald Reagan. Hong said that means Friedland “studied at the foot of a jurist very concerned about process and procedure.”
“I don’t think this is a foregone conclusion at all,” Hong said.
At issue is Trump’s Jan. 27 order that banned refugees from entering the U.S. for 120 days, blocked for 90 days travel from Iran, Iraq, Libya, Somalia, Sudan and Yemen, and barred immigration from Syria indefinitely. Trump said the ban was needed to give his intelligence agencies time to implement “extreme vetting ” procedures for people coming from those terror-prone countries.
That order unleashed chaos around the world, as foreigners with visas and green cards were detained at U.S. airports and prohibited from boarding U.S.-bound flights.
After Robart blocked the action pending further legal arguments, the State and Homeland Security departments reissued more than 60,000 visas that had been revoked.
“The history of these challenges to presidential actions on immigration has been a pretty sharp partisan split. I wouldn’t be surprised to see the 9th Circuit uphold the (temporary restraining order). And in the Supreme Court, I can easily imagine a 4-4 split.” Stephen Legomsky, former chief counsel at U.S. Citizenship and Immigration Services