Court hints at keeping Trump order on hold

The first federal appeals court to consider President Trump’s ban on travel to the United States from seven predominantly Muslim countries held a contentious hearing Tuesday and appeared, in the end, to be leaning against reinstating Trump’s order, which has been suspended by a federal judge.

During the one-hour session of the Ninth U.S. Circuit Court of Appeals, which is based in San Francisco, the three-judge panel focused on the critical question of whether Trump’s Jan. 27 executive order, which also halted admission of all refugees, was a national security decision immune from lawsuits or judicial review.

Yes, argued Justice Department attorney August Flentje. “The president is the official that is charged with making those judgments,” he said.

“Are you arguing, then, that the president’s decision in that regard is unreviewable?” asked Judge Michelle Friedland in apparent disbelief. Later, she cited evidence offered by the states of Washington and Minnesota, which filed the suit, that Trump’s order was a camouflaged version of his call during the presidential campaign for a ban on Muslim immigration.

Judge William Canby chimed in, asking Flentje: “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’”

Judge Michelle Friedland, of the Ninth Circuit U.S. Court of Appeals in San Francisco. is one of the three federal judges to hear arguments on Tuesday, Feb. 7, 2017, in the challenge to President Trump's travel ban. less Judge Michelle Friedland, of the Ninth Circuit U.S. Court of Appeals in San Francisco. is one of the three federal judges to hear arguments on Tuesday, Feb. 7, 2017, in the challenge to President Trump's travel ... more Photo: -, AFP/Getty Images Photo: -, AFP/Getty Images Image 1 of / 92 Caption Close Court hints at keeping Trump order on hold 1 / 92 Back to Gallery

The government lawyer called the question irrelevant to the case.

And when Flentje said Congress and former President Barack Obama had identified the same seven nations as trouble spots in a law requiring their emigrants to obtain visas, Canby pointed out that the government screens visa holders and had not uncovered any federal crimes by anyone from those countries.

The third judge, Richard Clifton, agreed with his colleagues that Trump’s order was subject to court review but appeared less skeptical of the justifications offered by the government.

“It’s possible to ban people from countries without a religious motive,” Clifton said. “The vast majority of Muslims” seeking U.S. entry would not be affected by the seven-nation order, he said, and the administration’s “concern for terrorism by those Islamic sects” in the seven countries “would be hard to deny.”

He also appeared to endorse a suggestion by Flentje that if the court was not willing to reinstate all of Trump’s order, it should at least allow him to apply the ban to people from the seven nations who had not yet entered the U.S. or obtained visas.

Friedland was appointed by Obama, Canby by another Democrat, Jimmy Carter, and Clifton by Republican George W. Bush. The panel is expected to issue a ruling in the next few days, and the losing side is likely to appeal immediately to the U.S. Supreme Court.

Trump’s order banned U.S. entry for 90 days for anyone from Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen. It also placed a 120-day ban on all U.S. admission of refugees who are fleeing violence and persecution in their home countries and indefinitely suspended admission of refugees from Syria.

Once the refugee ban expires, the president’s order said, the U.S. will give priority to admission of religious minorities who claim persecution in their homeland. That provision was worded neutrally, but Trump told a Christian Broadcasting Network interviewer that his intent was to protect Christians in majority-Muslim countries.

The order, issued without warning, had a widespread and tumultuous impact, disrupting plans of migrants and refugees who had taken years, in some cases, to win U.S. approval to enter the country.

Trump said only 109 would-be entrants had been detained and held for questioning. But a Justice Department lawyer later estimated that 100,000 previously valid visas had been revoked, while a State Department official put the number at 60,000. The executive order also appeared to apply to legal U.S. residents with green cards that allow them to work, but the administration later said green card holders were not covered by the order.

Parts of the president’s order were briefly blocked by a half-dozen federal judges in suits around the nation, but Friday’s decision by U.S. District Judge James Robart of Seattle suspended the entire order nationwide.

Robart said lawyers for Washington and Minnesota were likely to prove that Trump’s order discriminated against Muslims. Their evidence included his singling out of Muslim-majority countries, his pre-election call for a ban on all Muslim immigration, his Jan. 27 comments about fighting “radical Islamic terrorism” and protecting Christians, and a Jan. 28 television interview during which former New York Mayor Rudy Giuliani, a Trump adviser, said the president wanted a “Muslim ban” and asked him to find a way to do it legally.

Flentje, the Justice Department lawyer, dismissed that evidence in Tuesday’s telephone hearing, saying judges shouldn’t overturn the president’s order “based on some newspaper articles.” Pressed by Clifton, Flentje didn’t dispute that the statements had been made but said only affected individuals — and not the states — had the right to sue for discrimination.

But Robart said in his ruling that the travel ban, by stranding some people overseas and forcing others to cancel plans to leave the country, was causing financial hardship to the states’ residents and to institutions like state universities and hospitals.

Thousands of residents of the two states have been affected, Washington state’s lawyer, Noah Purcell, told the appeals court. “It’s the federal government that is asking to overturn the status quo,” he said. “At this point, things have slowly gotten back to normal.”

In response to Clifton’s observation that most Muslim would-be immigrants would be unaffected by the seven-nation ban, Purcell said a presidential order motivated by religious discrimination is a constitutional violation that must be prohibited nationwide.

Robart, meanwhile, has asked for written arguments through Feb. 17 on whether he should issue a preliminary injunction that would block Trump’s order indefinitely. An injunction, if issued, could be appealed in an extended process that could lead to a definitive Supreme Court ruling on the legality of the executive order.