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Not a ‘complete’ Muslim ban, Washington solicitor general concedes

Special Counsel representing President makes opening arguments to 9th U.S. Circuit Court of Appeals

The 9th U.S. Circuit Court of Appeals is hearing oral arguments to determine whether to lift a nationwide injunction against President Donald Trump’s travel ban against citizens of seven Muslim-majority countries. Special Counsel representing Pres
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The 9th U.S. Circuit Court of Appeals is hearing oral arguments to determine whether to lift a nationwide injunction against President Donald Trump’s travel ban against citizens of seven Muslim-majority countries. Special Counsel representing Pres

A Muslim ban?

Washington Solicitor General Noah Purcell noted that President Donald Trump had called for a halt to Muslims entering the country on the campaign trail.

However, he said, “We’re not saying this is a complete ban on Muslims entering the country.”

Judge William Cameron Canby Jr., a Carter appointee, questioned whether Washington can assert a religious discrimination claim in its opposition to the executive order. The reason, the judge said, is that by his calculations, the number of Muslims in the seven countries only amounts to 15 percent of all of the religion's adherents worldwide.

Canby also said the seven countries might be of a security concern due to the presence of "radical Islamic sects" within them.

Plaintiffs, Canby said, would have trouble "inferring a religious animus" when "the vast majority of Muslims wouldn't be affected" by Trump's executive order.

Broad authority asserted

Department of Justice lawyer August E. Flentje said the president has the authority to suspend entry to certain classes of immigrants “if their entry would be detrimental to the U.S.”

Flentje also argued that the state of Washington does not have the authority to challenge Trump’s order on the grounds that it is acting on behalf of its citizens.

"Sure they can," said Judge Richard R. Clifton, the George W. Bush appointee on the panel.

Flentje said the state of Washington "can't step into the shoes" of its citizens. He said foreigners who have never been to the United States don't have rights that the state can assert to protect and that Judge Robart's order goes "far beyond" a claim filed on behalf of legal residents who live in the United States.

Judge William Cameron Canby Jr., a Carter appointee, wondered about the proportion of Washington residents who might be covered by the case are lawful permanent residents.

"I suspect it would be a small fraction," Canby told Purcell, who said the number could be in the "thousands" in both Washington and Minnesota, which joined in the action.

Judges probe for risk

In the opening minutes of oral arguments, the three-judge panel from the 9th Circuit Court of Appeals have each taken turn poking the administration's Department of Justice lawyer, August E. Flentje, for evidence that immigrants from the seven countries targeted by Trump’s order pose a patricular risk, stating that there have been no cases or incidents attributed to immigrants from any of the countries.

Flentje cited incidents related to Al Shabaab, a group based in Somalia. Judge Michelle T. Friedland asked Flentje if any such attacks were included in the record, and he replied that they were not.

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Judges include Republican, Democrat appointees

The three-judge panel that will hear the appeal of a Seattle judge's decision to block President Donald J. Trump from carrying out his executive order restricting immigration is made up of two appointees from Democratic presidents and another who was named by a Republican.

Oral arguments will begin at 3 p.m. Tuesday. They will be conducted remotely and livestreamed on the website of the San Francisco court.

The youngest of the three judges is Michelle Taryn Friedland, who was born in 1972 and appointed to the 9th U.S. Circuit Court of Appeals in 2014 by President Barack Obama. Judge Richard R. Clifton, who was born in 1950, was named in 2001 by President George W. Bush. Judge William Cameron Canby, Jr., who was born in 1931, was nominated to the panel by President Jimmy Carter in 1980.

According to her biography on the 9th Circuit's website, Friedland obtained her undergraduate degree and her law degree from Stanford University. Born in Berkeley, Friedland studied at Oxford University on a Fulbright scholarship and once clerked for former U.S. Supreme Court Justice Sandra Day O'Connor. According to a Los Angeles Times story, Friedland won the State Bar of California President's Pro Bono Service Award in 2013 for her representation of a gay-rights group that contested the Proposition 8 ballot measure that outlawed same-sex marriage.

Clifton did his undergraduate work at Princeton University before getting his law degree from Yale. He worked in private practice in Hawaii at the time of his appointment by Bush. He also had been a law clerk for 9th Circuit Judge Herbert Y.C. Choy. Clifton spent five years as chair of the board of directors of Hawaii Public Radio, according to a press release issued by the 9th Circuit.

Canby is the ninth most-senior judge on the 44-judge 9th Circuit. He graduated from Yale University before obtaining his law degree at the University of Minnesota. He was a judge advocate general in the U.S. Air force, clerked for U.S. Supreme Court Justice Charles E. Whittaker, worked in private practice in St. Paul, Minn., and served in the Peace Corps from 1962 to 1966. He also worked as a special assistant to Democratic U.S. Senator Walter Mondale in Minnesota and to Harris Wofford, the president of State University of New York-Old Westbury, before becoming a law professor at Arizona State University. At ASU, Candy also served as director of the school's Office of Indian Law.

Trump's Jan. 27 order sought 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 suspended refugees from entering the country for 120 days.

U.S. District Court Judge James L. Robart last Friday issued a temporary restraining order that blocked the order nationwide.

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Andy Furillo: 916-321-1141, @andyfurillo The Bee’s Mary Lynne Vellinga contributed to this report.

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