Trump’s Ban Tests Executive Authority

Appeals Court Hears Case to Reinstate Travel Ban

Two lawyers, both alike in dignity

In fair San Francisco, where we lay our scene

From ancient grudge break to new mutinous tweets

Where civil lawyers argue executive orders are “unclean”

A pair of star-cross’d lawyers take their briefs

— Shakespeare, never

Following the implementation of Trump’s travel ban by executive order, the country has borne witness to a whirlwind of tweets and litigation. Initially, the order wasn’t called a “ban”, but billed as “extreme vetting”, despite Trump calling it a ban. On February 4th, US District Judge James Robart declared a temporary restraining order of the executive order’s controversial provisions, setting the stage for Tuesday’s legal argument as to whether Trump’s order can stand while facing legal challenges.

This represents a test of how far Trump can stretch the legal authority of the executive branch. Trump even went so far as to challenge the authority of the judge who suspended his order.

With this incendiary tweet, Trump is challenging the legitimacy of a federal circuit judge in good standing with 16 years on his current bench, appointed by George W. Bush, for those keeping score at home.

Judges Clifton, Canby and Friedland heard oral arguments.

Tuesday night saw a three-judge panel hear oral arguments from August Flentje, special counsel to the assistant attorney general at the Justice Department, and Washington state’s Attorney General Noah Purcell. Flentje defended the ban by saying that, “ “This is a traditional national security judgment that is assigned to the political branches and the President and the court’s order immediately altered that.” The judge’s panel challenged the governments’ position, asking for evidence that these countries were connected with terrorism to validate the concern. Flentje cited the President’s “…national security judgment about the level of risk” and Congress’ identification of these countries for concern.

Purcell argued that reinstating the order would reinstate chaos and invited the court to decline that invitation while the order was argued further. Purcell pushed back on the government’s arguments, claiming they had shown “no clear factual claim or evidentiary claims from what that irreparable harm would be,” if the order weren’t immediately reinstated.