Trump’s immigration ban is not easy to defend in court, DOJ attorney finds
Department of Justice lawyers struggled from the outset Tuesday as they defended President Trump’s immigration ban before skeptical judges on the Ninth Circuit Court of Appeals.
Minutes into the hearing, the lawyer representing the government, August E. Flentje, found himself sidestepping pointed questions from the three-judge panel about what specific threats visa holders from the seven banned countries pose.
“The president determined there was a real risk,” Flentje said.
When asked again, Flentje indicated he didn’t have a stronger response prepared because, “The proceedings have been moving very fast.”
They key question at the hearing was whether a federal judge’s temporary restraining order on Trump’s travel ban will remain in place, not whether the ban itself is constitutional. But also discussed was whether Trump’s executive order was technically a “Muslim ban.”
The Justice Department lawyers argued that it wasn’t, since the order does not explicitly mention religion as a criterion for blocking people from coming into the country. Washington state Solicitor General Noah Purcell — the original restraining order came from Washington — pointed out that Trump and his advisers have made “rather shocking” public statements that made it clear the goal of the executive order was to discriminate against Muslims.
The judges pressed Flentje on this point.
“Plaintiffs have submitted evidence that shows that a [Muslim ban] was the motivation, so why shouldn’t we proceed to find out if that was the motivation or not?” Friedland asked.
“It is extraordinary for the court to enjoin the president’s national security decision based on some newspaper articles,” Flentje responded.
This is going extremely Not Well for the government
— sarah jeong (@sarahjeong) February 7, 2017
Wow, judge going in on DOJ on how some immigration *must* be reviewable by courts if a potential "Muslim ban" would be.
DOJ concedes yes.
— Ari Melber (@AriMelber) February 7, 2017
Appellate hearings generally don’t solicit much public interest. But this hearing, which will help decide the fate of arguably the most controversial move Trump has made since taking office, received widespread attention. More than 135,000 people tuned in to the audio livestream to listen to the arguments, which kicked off at 6 p.m. ET. It was also live streamed on CNN.
#9thCircuit is trending. Which must be a first
— emily bell (@emilybell) February 7, 2017
I'm on the 1 train, but the fact that everyone is listening to a legal proceeding together like it's SHARKNADO is making me weepy.
— emily nussbaum (@emilynussbaum) February 7, 2017
It's like the whole country is on the same conference call. #9thCircuit
— John Collison (@collision) February 7, 2017
The White House hastily issued the executive order on Jan. 27, throwing the immigration system, law enforcement, and travelers around the world into chaos. The executive order bans refugees for 120 days — and Syrian refugees indefinitely — and suspends the entry of travelers from seven Muslim-majority countries for 90 days.
Mass protests erupted around the U.S. and triggered a series of lawsuits nationwide that challenged the order’s constitutionality. Washington became the first state to sue the Trump administration over the order, prompting federal Judge James Robart to issue a temporary restraining order on the ban last Friday, effectively blocking its enforcement.
Trump took to Twitter and called Robart a “so-called judge,” saying his ruling was “ridiculous and will be overturned!”
The Department of Justice appealed Robart’s temporary restraining order and tried to reinstate it immediately. The Ninth Circuit Court of Appeals denied the DOJ’s request pending additional arguments. On Monday, the government filed its brief with the appeals court, arguing that the suspension of Trump’s immigration ban should be overturned immediately.
During the hearing, the judges appeared to side with Washington state, saying that states are allowed to sue the government over federal immigration policy. The DOJ’s argument, filed in its brief, was that the president has full say over who comes into the country on the basis of national security, and that the restraining order “second-guesses the president’s national security judgment.”
The judges appeared to be unconvinced by the government’s argument.
Lawyers for Washington and Minnesota (along with 97 tech companies who are also part of the suit) say that the ban will cause “irreparable harm.” If the federal appeals court upholds the executive order, the plaintiffs in the suit argue, it “would reinstitute those harms, separating families, stranding our university students and faculty, and barring travel.”
The Ninth Circuit is known for being one of the most liberal appellate courts in the nation, but the three judges who weighed in on the immigration ban Tuesday were appointed by a politically diverse group of presidents. Judge William Canby Jr. was appointed by Jimmy Carter in 1980, Clifton was appointed by George W. Bush in 2002, and Friedland was appointed by Barack Obama in 2014.
After more than an hour of oral argument, Friedland adjourned the court and said they would make a decision “as soon as possible.”