A top Justice Department lawyer argued strongly Tuesday that President Donald Trump’s executive order limiting travel temporarily from seven foreign nations was “plainly constitutional” and in the country’s national security interest, but an attorney for the state of Washington urged a panel of federal judges to view the order as a violation of the establishment clause, which prevents favoring one religion over another, and is plainly aimed at limiting Muslims from entering the United States.
In an hourlong session before three judges from the 9th U.S. Circuit Court of Appeals, the two lawyers debated fiercely over whether the president had the authority to issue the order and how the appeals court should respond to a lower-court order last week that placed the travel ban on hold.
“This judgment was well within the president’s power as delegated to him by Congress, and it is constitutional,” August E. Flentje, special counsel to the U.S. attorney general, argued as he asked the panel to overturn part or all of the temporary restraining order issued last week.
But Washington state Solicitor General Noah G. Purcell insisted that his state and others have been harmed by the order through lost revenue from visitors and disruptions to families.
“We’ve had students and faculty at our state universities stranded overseas,” Purcell said. “We had families that were separated. We’ve had lost tax revenue.”
The arguments in the highly charged case, which has been punctuated by Trump’s criticism on Twitter after last week’s order halting the travel ban, were conducted by telephone and live streamed over the Internet, with cable networks offering up the audio feed to viewers nationwide.
Each side was given 30 minutes to address the three-member panel of U.S. District Judges William C. Canby Jr., Richard R. Clifton and Michelle T. Friedland. The judges repeatedly interrupted both Purcell and Flentje with sharp questions.
Trump signed the order Jan. 27 to bar entry of visa holders from seven Muslim-majority countries – Yemen, Sudan, Libya, Iran, Iraq, Syria and Somalia – for 90 days, pending additional security checks. The order also prevented refugees from entering the country for 120 days.
The immediate impact was chaos at the nation’s airports as travelers found themselves detained or told to return to their home countries. Civil liberties attorneys and protesters flooded into terminals looking to help and accusing the administration of singling out Muslims.
The judges returned to that claim frequently Tuesday, asking the lawyers to explain whether a president could order the exclusion of all citizens from a specific nation or simply based on religion.
“What if the order said, ‘No Muslims?’ ” asked Friedland, who was nominated to the court by President Barack Obama in 2014.
“If there were an executive order that prevented the entry of Muslims, there would be people with standing to challenge that, and I think that would raise establishment clause and First Amendment issues,” Flentje replied. “But that’s not the order we have here.
“The order is limited to the countries identified by Congress.”
The Trump administration contends that its order stems from determinations by Congress and the Obama administration that visitors to the United States from the seven nations require greater scrutiny because of the presence of terrorist organizers there.
Opponents of the travel ban say it is clearly aimed at Muslims. They cite statements made on the campaign trail by Trump when he was a candidate favoring a Muslim ban.
Clifton, who was nominated to the court in 2001 by President George W. Bush, said the nations listed on the travel ban represent only about 15 percent of the world’s Muslim population, and said the argument that some acts of terror spring from radical Islamic sects “is kind of hard to deny.”
Purcell answered that even if the vast majority of Muslims are not harmed by the order, a discrimination claim does not have to show everyone in a targeted group was harmed.
The case is a closely watched test of the young Trump administration and its desire to fulfill some campaign promises through executive orders. Legal scholars believe the matter will end up in the hands of the U.S. Supreme Court.
The 9th Circuit panel did not indicate when a decision would be reached, but Friedland told the lawyers it will come “as soon as possible.”
“It was a lively oral argument,” said Cornell Law School professor Stephen W. Yale-Loehr, an expert on immigration issues. “The judges asked a lot of questions both on jurisdictional issues like whether the state of Washington had standing, as well as on the merits. I think the (solicitor general) of Washington did a little better job than the Justice Department attorney, but that doesn’t necessarily indicate how the three-judge panel will rule.”
Yale-Loehr said the judges “need to decide simply whether simply to let the case go back to the district court for further fact finding or whether they will issue a reasoned decision that will give the Supreme Court enough information to be able to decide whether to take the case up at this point or not.”
The case stems from suits by the states of Washington and Minnesota against the federal government that contend the travel ban threatened to deprive them of revenues from visitors as well as foreign students and workers needed in various industries.
A federal judge in Seattle conducted a hearing last Friday over the states’ requests that the ban be stopped. After arguments from both sides, U.S. District Court Judge James L. Robart issued a temporary restraining order that blocked the president’s order nationwide, setting the stage for Tuesday’s arguments before the 9th Circuit panel.
Flentje pressed the argument that the states do not have standing to bring their suit because they cannot demonstrate irreparable harm caused by the order and that such a challenge should come from individuals. Purcell countered that thousands of Washington state citizens have been affected and that the original interpretation of the order by the government barred legal permanent residents of the United States who are from the seven affected nations.
After an uproar over the fact that green-card holders were being kept out of the country, administration officials said they were not covered by the ban. If it did apply, Purcell said, half a million people could be affected.
“Now they’ve changed their minds about five times on whether it applies to those people, and now they say it doesn’t,” he said.
Civil rights groups and refugee advocates filed briefs urging the 9th Circuit to uphold Robart’s order, as did high-tech firms such as Apple and Facebook, which complained that the travel ban would limit their ability to attract quality workers from overseas.
California and 14 other states – New York, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia – as well as the District of Columbia, filed a brief Monday objecting to the travel ban. New Hampshire and North Carolina joined them on Tuesday
Despite the government’s hopes of overturning Robart’s order, the judge on Tuesday scheduled further proceedings on the case in Seattle, ordering Washington and Minnesota officials to submit their motion for a preliminary injunction of the travel ban by midnight Thursday. The federal government was ordered to submit its opposition to such a motion by midnight Feb. 15, and the states were told to reply to that by Feb. 17.
That means that unless the 9th Circuit overturns the restraining order, Robart will move forward on a decision of whether to issue a preliminary injunction, the next step toward ordering a permanent stop to the travel ban.
UC Davis law professor Gabriel Chin said it sounded to him as if the judges will find that the two states have standing to proceed with the case and then return it to the district court in Seattle for further factual findings that could lead to Judge Robart issuing a preliminary injunction.
“I wouldn’t be surprised not withstanding the vigorous questioning if the judges haven’t already had a sense of what they were going to do before they went into this,” Chin said. “I wouldn’t be surprised if there hasn’t been a drafting already, and they may be prepared to issue a decision quickly.”