Hour-long hearing in appeals court was most significant legal battle yet over ban, and the judges said they would try to deliver a ruling as soon as possible

This article is more than 3 years old

This article is more than 3 years old

A lawyer seeking to reinstate Donald Trump’s travel ban was grilled by a panel of three judges on Tuesday, facing questions over the president’s inflammatory campaign promise to close America’s borders to Muslims.



August Flentje, of the Department of Justice, was put on the spot over why seven Muslim-majority countries had been targeted in Trump’s executive order, as well as past statements made by the president and his ally Rudy Giuliani.

The hour-long hearing before the San Francisco-based ninth circuit court of appeals was the most significant legal battle yet over the ban. The judges said they would try to deliver a ruling as soon as possible but gave no indication of when.

Flentje, reportedly called up for the hearing at short notice, asked the judges for a stay on the temporary restraining order placed on Trump’s travel ban by district court judge James Robart last week.

What you need to know about the travel ban hearing – and what happens next Read more

The executive order barred all visitors from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the US for 90 days, and suspended Syrian refugees entry indefinitely and all others for 120 days.

During a hearing conducted by telephone between various locations, Flentje described the ban as putting a “temporary pause” on travelers from countries that “pose special risk”. He said the seven countries targeted had “significant terrorist presence” or were “safe havens for terrorism”.

Trump’s actions were “plainly constitutional”, Flentje argued, as the president sought to strike a balance between welcoming visitors and securing the nation of the risk of terrorism. “The president has struck that balance,” he said. “The district court order upset that balance.”

Flentje 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 Michelle Friedland asked: “Are you arguing then that the president’s decision in the regard is unreviewable?”

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

But Judge William Canby pointed out that people from the seven countries already could not come into the country without a visa and were subject to “the usual investigations”. How many of these people had committed terrorist attacks in the US, he wondered, before pointing out it was none.

Flentje pointed to Congress’s determination that they were countries of concern, an argument that Judge Richard Clifton dismissed as “pretty abstract”.



Trying to regain ground, the lawyer said: “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.”

Friedland, who was appointed by Barack Obama, interjected: “Is that in the record? Can you point us to what, where in the record you are referring?”

Flentje admitted: “It is not in the record.”

The panel of judges continued to hammer away at the government lawyer, who sometimes left long pauses before replying. He conceded that some elements of the executive order might be “problematic”.



Canby, an appointee of Jimmy Carter, pondered: “Could the president simply say in the order, we’re not going to let any Muslims in?”

Flentje said: “That’s not what the order does.”

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

Clifton, an appointee of George W Bush, added: “If the order said Muslims cannot be admitted, would anyone have standing to challenge that?”

Flentje repeatedly insisted that this is not what the order says: “This is a far cry from that situation.”

But later in the hearing one of Trump’s most divisive campaign promises – a “total and complete shutdown on Muslims entering the United States” – reared its head. Washington state and Minnesota, which won the restraining order against the ban, have argued that the court must take note of Trump’s rhetoric.

Clifton asked Flentje if he denied that the Republican candidate had made those statements about a Muslim ban.

Flentje protested: “It is extraordinary to enjoin the president’s national security determination based on some newspaper articles, and that’s what has happened here. That is some very troubling second guessing.”

Noah Purcell, Washington state’s solicitor general who argued the case on behalf of his own state and Minnesota last week, argued on Tuesday that the government had shown no “irreparable harm” from keeping the temporary restraining order in place. But, he said, several harms had already been demonstrated in the period the travel ban was in effect: “Families were separated. Longtime residents were unable to travel overseas. There is lost tax revenue.”

The court should “look behind” the executive order for the motivation, Purcell argued, saying it amounted to discrimination on religious grounds. But Clifton said the seven countries made up a minority of Muslims worldwide. “My quick pencilling suggests it’s something less than 15%,” he said.

“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.”

Purcell pointed to “shocking” public statements from the president and former New York mayor Rudy 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.’”

Whatever the court eventually decides, either side could ask the supreme court to intervene, raising the prospect of a long and drawn-out legal battle.