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Travel Ban Battle: Trump Lawyer Faces Off With States, Supreme Court Inevitable

By Page Mackinley
Published on: 07:57 PST, Feb 8, 2017

President Donald Trump’s travel ban case was put before federal judges in the court of appeals via conference call on Tuesday, to hear arguments from lawyers on both sides of the much-debated immigration executive order to make a judgment as to whether the order should be reinstated.

The executive order barred visitors from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from entering the US for 90 days, it suspended Syrian refugees from entry indefinitely and suspended the whole U.S. Refugee Admissions Program for 120 days.

The San-Francisco U.S. Ninth Circuit Court of Appeals consists of a three-judge panel. Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, an appointee of Barack Obama.

During the hour-long hearing, which was broadcast live online, lawyers for each side had 30 minutes to make their case. At the end, the judges stated that they would try to reach a ruling as soon as possible. Other suits challenging the constitutionality of the immigration executive are also moving through the court system.

After the ruling of district court judge James Robart to place a temporary restraining order on the travel ban, and the court of appeals ruling not to stay Robart’s decision — pending a full hearing — August Flentje, who represents the Trump administration as special counsel for the Department of Justice (DOJ) asked the judges for a stay on the temporary restraining order.

Flentje was asked why the seven Muslim-majority countries were particularly targeted in Trump’s travel ban. He was also grilled about previous public statements made by the president and one his advisers, former New York Mayor, Rudy Giuliani.

Meanwhile, Washington state Solicitor General Noah G. Purcell, representing Washington and Minnesota, who have also sued the DOJ) asked the judges to uphold the lower court’s ruling and continue the suspension of Trump’s order as lawsuits continue.

Arguing for the states, Purcell said the ban violates the Establishment Clause of the First Amendment, which stops the government from favoring one religion over another. The lawyer asked the judges to “look behind” the executive order at the intent of it.

The judges, particularly Bush appointee Clifton, asked Purcell to support his claim.

“I’m not persuaded,” Clifton said. The countries targeted “encompass only a relatively small percentage of Muslims.”

Purcell argued that the states only needed to prove the order was motivated by some bias to discriminate against Muslims. He then cited Trump’s December 2015 vow to implement a “total and complete shutdown on Muslims entering the United States” and also urged the judges to include Trump’s rhetoric as evidence in the case.

The lawyer said, “There are statements that are rather shocking evidence of intent to discriminate against Muslims…from the president and his top advisers.”

Purcell also made an example of Giuliani, who 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.'”

Purcell noted that it is “remarkable” to have this much evidence of intent before the official pre-trial process called discovery.

However, Judge Clifton seemed skeptical of these arguments and countered that foreign and immigration policy differentiates between countries. As an example, the judge said the U.S.’ policy specifies nationals from France and North Korea.

Clifton went on to say the seven countries targeted in Trump represented a minority of Muslims worldwide. “I have trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected, and where the concern for terrorism from radical sects is hard to deny,” the judge said.

Clifton added, “My quick pencilling suggests it’s something less than 15%.”

In addition to arguing that Muslim bias was demonstrated in the order, the Washington state lawyer said the burden was on DOJ to show “irreparable harm” has been created as a result of the temporary restraining order, and hadn’t.

In contrast, Purcell claimed the states could show harm has been caused by the travel ban.

He alleged, “Families were separated. Longtime residents were unable to travel overseas. There is lost tax revenue.”

Flentje was asked by Friedland whether the judges should allow the case to proceed on to discovery to see whether Trump’s remarks comments were anti-Muslim in motivation.

At this, an irritated-sounding Flentje responded that it was “extraordinary to enjoin the president’s national security determination based on some newspaper articles, and that’s what has happened here.”

The DOJ’s counsel added, “That is some very troubling second guessing.”

Clifton pressed and asked the lawyer is he was denying those statements were made.

“No,” Flentje replied.

The lawyer said the travel ban put a “temporary pause” on travelers from countries that “pose special risk,” adding that the seven countries had a “significant terrorist presence” or were “safe havens for terrorism.”

He also argued that Trump’s executive order was “plainly constitutional” and that the president was trying to find a balance between welcoming visitors and keeping America safe from the risk of terrorism.

“The president has struck that balance,” Flentje said. “The district court order upset that balance.”

He also argued that the district court restraining order was too broad, giving rights to people “who have never been to the United States” and “really needs to be narrowed.”

Judge Friedland asked, “Are you arguing then that the president’s decision in the regard is unreviewable?”

To which, Flentje replied, “Yes, there are obviously constitutional limitations.”

Judge William Canby then said that people from the seven countries targeted already had to have visas to enter the U.S and were vetted with “the usual investigations.” He also rhetorically asked how many of these people had committed terrorist attacks in the US, before stating it was none.

Flentje raised Congress’ view that the seven countries detailed in the travel ban were countries of concern to the U.S. To which, Clifton said that was “pretty abstract.”

The DOJ special counsel replied, “Well, I was just about to at least mention a few examples. There have been a number of people from Somalia connected to al-Shabaab [an Islamist militant group] who have been convicted in the United States.”

Asked by Friedland if that claim was in the record, Flentje conceded, “It is not in the record.”

Canby asked the government lawyer, “Could the president simply say in the order, we’re not going to let any Muslims in?”

Flentje responded saying, “That’s not what the order does.”

Canby pressed, asking, “Could he do that? Would anyone be able to challenge that? It’s a hypothetical point.”

Clifton chimed in, “If the order said Muslims cannot be admitted, would anyone have standing to challenge that?”

Flentje insisted, “This is a far cry from that situation.”

One of the key claims argued by Trump administration’s lawyer is that the states don’t have legal standing to bring the lawsuit, and that president has broad legal authority to protect the country’s national interest regarding alien nationals and refugees.

The UK’s Guardian newspaper and other credible media outlets’ reading of the hearing is the judges seem to think the states do have grounds for a lawsuit.

“Sure they can,” Clifton said when Flentje argued that the states don’t have standing to challenge visas being denied.

The Judges noted the chaotic rollout of the immigration order, which set off protests at airports around the U..S. Since then, the Trump administration has stated the order does not apply to legal residents.

The judges said a ruling would likely arrive this week. The highly anticipated decision is certain to be appealed to the Supreme Court whatever the outcome of the appeals court.

In which case, which way do you think the Supreme Court judges will swing on Trump’s controversial travel ban?

[Featured Image by Pool/Getty Images]

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