Trump Immigration Order Scrutinized In Federal Appeals Court

SAN FRANCISCO, CA – Three federal judges heard arguments on Tuesday for and against removing a restraining order against President Donald Trump’s executive order banning travel from seven majority-Muslim countries.

The Trump administration is seeking to remove the restraining order, which was put in place last week by a federal judge in Seattle. The three judges from the Ninth Circuit Court of Appeals will decide later this week whether to let it stand. Tuesday’s hearing allowed both sides to argue for and against the order.

Trump's executive order halted all refugee activity and all entry into the U.S. for residents of Syria, Iraq, Iran, Libya, Somalia, Yemen, and Sudan.

Washington Solicitor General Noah Purcell argued for Washington on Tuesday, and August F. Flentje spoke on behalf of the federal government. The three-judge panel included Judge William C. Canby Jr., a Jimmy Carter appointee; Judge Michelle T. Friedland, a Barack Obama appointee; and Judge Richard R. Clifton, a George W. Bush appointee.

You can listen to the full proceeding here:

Flentje asked the court to stay the restraining order for two reasons. First, it undermines the president’s national security judgement; second, Washington and Minnesota don’t have standing to sue to protect their residents from a federal immigration law. Even if Washington is harmed, Flentje said, the restraining order affects the entire nation.

At one point, Flentje said that the restraining order was based on things quoted in newspaper articles - a reference to what Trump said during the campaign about banning Muslims.

The judges asked Flentje why the administration chose those seven countries. He said that the countries were outlined by the Obama administration as potential terrorist hotspots. But the judges were skeptical and asked for specific incidents connected to people from those countries. He attempted to name one connected to Somalia, but admitted that he hadn’t included any specific incidents in court filings.

Because the government argued that courts could not challenge the president’s national security judgement, a judge asked Flentje a hypothetical question: what if Trump signed an executive order banning Muslims, specifically, from entering the U.S.?

He said that such an executive order could be challenged in that instance, but not by a state.

“Yes,” Flentje said. “It would be by U.S. citizen to someone seeking entry. This is a far cry from that situation.”

Purcell asserted that the restraining order must stay in place because the executive order harms Washington and Minnesota. He said that the executive order caused harm to businesses, cost the state tax revenue, and caused injury to state residents.

Although Flentje was questioned heavily by the judges – at times he was speechless – Purcell did not escape scrutiny.

Clifton questioned Purcell about the allegation that the executive order harms Muslims since, by Clifton’s math, the seven countries encompass only about 15 percent of Muslims worldwide.

“You just have to show the action was motivated in part by a desire to harm that group,” Purcell responded.

The judges chastised both sides when, under questioning, they referenced how little time they had to put together their respective cases.

Purcell also stumbled when asked to show evidence that Trump sought to ban Muslims as a group.

No matter the judges’ decision this week, legal watchers predict that the case may end up in the Supreme Court.

Last Friday, Judge James L. Robart of U.S. District Court in Seattle granted Washington Attorney General Bob Ferguson’s request for a temporary restraining order while Washington and Minnesota sue Trump to repeal the executive order permanently. The hearing was exclusively about that restraining order.

Tuesday’s hearing comes after a chaotic week of airport protests, tweets, and legal wrangling between Department of Justice attorneys representing Trump and attorneys from Washington and Minnesota.

So, how did we get here?

When Trump initially signed his order on Jan. 27, chaos reigned at airports across the country and the world, as immigration officials were unclear exactly how to enforce the ban and what it meant.

Refugees and citizens from prohibited countries who were in midair were detained once they arrived in the U.S. and, in some cases, sent back to their home countries. A federal judge in Brooklyn put an emergency stay on deportations, and a judge in Boston said people affected by the order could not be detained at all.

Robart temporarily blocked the order nationwide on Friday at the request of the Washington and Minnesota attorneys general. More than 100 tech companies – including Microsoft, Expedia, and Facebook - along with former Secretaries of State John Kerry and Madeline Albright, have joined the fight in support of blocking the order.

Over the weekend, Department of Justice attorneys asked the Ninth Circuit Court of Appeals to stay Robart’s order. In an emergency hearing on Saturday, the judges decided not to revoke the restraining order immediately, setting the stage for Tuesday’s hearing.

Also on Saturday, Trump took to Twitter to criticize Robart, calling him a “so-called” judge. Trump also proposed that federal judges would be responsible if a terrorist attack were to happen.

“Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!” Trump tweeted.

Department of Justice attorneys filed their argument Monday night for why the executive order should remain in place, arguing that the nation's security was at stake.

"Relying on his express statutory authority to suspend entry of any class of aliens to protect the interest, the President has directed a temporary suspension of entries through the refugee program and from countries that have a previously identified link to an increased risk of terrorist activity," the response said.

"The purpose of that temporary suspension is to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks."

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