Can The Trump Adminstration Reinstate Its Travel Ban? It's In Judges' Hands

The 9th U.S. Circuit Court of Appeals heard oral arguments Tuesday over whether the ban should remain on hold. Here are the points lawyers for the U.S. and Washington state governments tried to make.

ROBERT SIEGEL, HOST:

This evening, the 9th Circuit Court of Appeals heard arguments on whether to reinstate President Trump's executive order on immigration. The order limits travel from seven majority Muslim countries and bars the arrival of all refugees in the United States. A federal judge in Seattle put a temporary restraining order on the policy last Friday, and that restraining order still stands for now.

Here to tell us more are NPR Political Editor Ron Elving and NPR Legal Correspondent Carrie Johnson. Good to see you both.

RON ELVING, BYLINE: Hello, Robert.

CARRIE JOHNSON, BYLINE: Hi.

SIEGEL: And Carrie, we'll start with you. Let's start by what the federal government's lawyer had to say in today's hearing.

JOHNSON: Well, the Justice Department lawyer defending President Trump said the president has more or less a blank check when it comes to immigration and national security. August Flentje, the lawyer for the DOJ, said this lower court judge was overriding the judgment of the White House for his own judgment. The Congress has given the president a lot of power, the Justice Department says, and Trump is taking it to protect Americans at the border.

This is kind of like what we heard after 9/11 - very strong executive power arguments where the Justice Department is more or less saying under immigration law in place for decades, the White House has the authority to bar any class of traveler or immigrant if the president determines they're detrimental. That's exactly what the White House did here.

Now, the Justice Department lawyer got pressed a lot about whether judges could review just the words on the page in that executive order or do more digging to probe any kind of bad motives the White House may have had. Let's take a listen to Judge William Canby, a Jimmy Carter appointee, asking that DOJ lawyer about that.

(SOUNDBITE OF ARCHIVED RECORDING)

WILLIAM CANBY: Could the president simply say in the order, we're not going to let any Muslims in?

AUGUST FLENTJE: That's not what the order does here.

CANBY: Well, I know. I know that. Where...

FLENTJE: And the order relies on - sorry, your Honor.

CANBY: Could he do that? Could he do that? Would anybody...

FLENTJE: That's not what the order does.

CANBY: Would anybody be able to challenge that?

FLENTJE: That's not what the order does here.

CANBY: I know that.

FLENTJE: I do really feel - I do want to...

CANBY: It's a hypothetical question.

FLENTJE: ...Get to one key point.

RICHARD CLIFTON: Well, we'd like to get to an answer to that question.

SIEGEL: He didn't get to one (laughter), did he? We should explain, by the way, Carrie, to people who are hearing this for the first time that this was actually a telephone hearing. It was a conference call. That's why we're hearing this telephone quality. The various parties and the judges are in different places, is what was happening.

JOHNSON: Yeah. And in some instances, some of the lawyer had to phone a friend. The judges lent a helping hand every once in a while. That happened a couple of times.

SIEGEL: And that was the government's lawyer being questioned. What about the lawyer for the state of Washington?

JOHNSON: Sure. Noah Purcell, the solicitor general for the state of Washington, more or less said, listen; we would like this case to go back down to the lower court judge in Seattle who ruled in our favor. We want to develop more of a record. We want more evidence. We want to find out more of what was motivating the White House here. But in the meantime, the travelers, the green card holders, the people affected by this travel ban were facing irreparable harm. Here's what Purcell had to say.

(SOUNDBITE OF ARCHIVED RECORDING)

NOAH PURCELL: We have students and faculty at our state universities who are stranded overseas. We have families that were separated. We had longtime residents who cannot travel overseas to visit their families without knowing that they would be able to come back. We have lost tax revenue.

JOHNSON: And he also pointed out, Robert, there's that religious discrimination claim under the First Amendment arguing the Trump administration was essentially favoring Christians over Muslims.

SIEGEL: So Ron Elving, we had a number of different arguments here. Is what the president did justified by the facts? Is what the president did just within the powers of the president to do? Is the state of Washington - for that matter, Minnesota - are they sufficiently harmed by what's been done to be able to sue?

ELVING: All of those are the questions these judges need to decide. And then it's going to have to go back down to that lower court for a further decision, and we can assume that whoever loses in these levels is going to appeal back up the chain ultimately to the Supreme Court. So the Supreme Court will have to make this judgment. If the court is still stuck at four judges and four judges and they divide in the usual fashion, then it might come back down to what this 9th Circuit Court and maybe these three judges ultimately have thought.

SIEGEL: The states have to show irreparable harm. Has Donald Trump suffered irreparable harm from this already?

ELVING: You know, that's a good question. We're in the third week of his presidency, and here he is caught in this high-stakes legal battle. There are surely more like it to come. And this goes to a central tenant of the whole Donald Trump case in 2016, which was that Americans wanted greater safety from dangerous immigrants.

And it also of course goes to an element of his style. If he winds up losing this case because of things that have been on Twitter or because of things that he has said at moments of speeches - unscripted moments - if that's what ultimately costs him here, perhaps he will have to reconsider.

SIEGEL: Yeah, how relevant will those things be? One of the most striking exchanges, Carrie, in the hearing came between the lawyer who was arguing for the federal government, August Flentje, and the judge who was appointed by George W. Bush to the bench, Richard Clifton, about what evidence can be taken into consideration. Here's Flentje.

(SOUNDBITE OF ARCHIVED RECORDING)

FLENTJE: It is extraordinary for a court to enjoin the president's national security determination based on some newspaper articles. And that's what has happened here. That is not - that is a very troubling second guessing of the national security decision made by the president. And the notion that we are going to go back into court...

CLIFTON: Stop; stop. This is Judge Clifton. You deny that in fact the statements attributed to then-Candidate Trump and to his political advisers and most recently Mr. Giuliani - do you deny that those statements were made?

FLENTJE: Judge Clifton, I - no, I would note that...

SIEGEL: And what happened here was Donald Trump campaigned, at one point proposing a Muslim ban. He says that is not this. And Rudolph Giuliani has said recently that Trump went to him and said, how do I do this? How do I do it legally? Well, what do you think, Carrie? I mean is that stuff that's going to figure in this whole decision?

JOHNSON: Robert, it already has. I mean the states who are suing the White House and the administration here say that's evidence of discriminatory intent, bad intent to favor one religion over another. And moreover, this, they say, is what is out there in the public on television and on Twitter. They say, if a judge allows them to go through the discovery process, who knows what they might find in the White House files on this?

SIEGEL: On the other hand, Ron, the lawyer arguing for Washington State was confronted with the question, how can this be a Muslim ban if only about 15 percent of the world's Muslims are covered by it?

ELVING: And he said it doesn't have to ban every Muslim in order to be a ban on Muslims. And certainly of the people from these countries who are being banned, those are the Muslim people. The people from those countries who might still be allowed to come into the country later on - there seems to be some favor there for Christian residents of those countries.

SIEGEL: What are your thoughts on the - on this exercise of constitutional law live?

ELVING: Wonderful in a way, certainly an advertisement for the openness of the constitutional system that we have. And certainly the liveliness of these judges would certainly belie the notion that we have some berobed old people who sit around and just sort of pontificate. They were very engaged, and they had clearly prepared well for these questions.

SIEGEL: And we should note, Carrie, that not every circuit of the federal judicial system is open to either audio or video. And there was no video in this case because the people were in different places taking part in it. But this - obviously the courts out there are quite open.

JOHNSON: They're quite open. And in fact, some good government groups that have been trying to wrestle cameras inside the U.S. Supreme Court for decades now have been using this case as an argument for doing that - no sense the folks over at the High Court are going to yield to that pressure.

SIEGEL: (Laughter) OK, NPR justice correspondent Carrie Johnson, political editor Ron Elving, thanks to both of you.

ELVING: Thank you, Robert.

JOHNSON: You're welcome.

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