9th Circuit panel shows some skepticism as administration defends Trump’s temporary immigrant ban

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Members of a federal appeals court panel on Tuesday appeared skeptical while questioning a Justice Department lawyer about President Donald Trump’s power to enact a temporary travel ban on some immigrants in the name of national security.

The New York Times described the live-streamed telephone hearing before the San Francisco-based 9th U.S. Circuit Court of appeals as “lively but technical.” According to the Times, the judges “sometimes seemed taken aback by the assertiveness of the administration’s position, which in places came close to saying the court was without power to make judgments about Mr. Trump’s actions.”

A Washington Post story reports that the panel “aggressively questioned” lawyer August Flentje, who is special counsel to the U.S. attorney general, according to the Recorder (sub. req.).

Trump’s order temporarily bans refugees and immigrants from seven majority-Muslim countries from entering the United States. At issue in the case is whether a temporary restraining order blocking the ban nationwide should remain in place while the case proceeds.

At times, Flentje “dodged the question” on whether courts had the power to review a president’s travel ban, the Recorder reports. Another time, pressed for an answer on whether a president’s decision is unreviewable, Flentje answered “yes.”

“There are obviously constitutional limitations,” Flentje said, “but we’re discussing the risk assessment” for terrorism. He added that the government was not conceding any constitutional limitations in the case.

Asked about the link between terrorism and citizens from the seven countries, Flentje said the administration had not had time to collect the evidence because of the fast pace of the proceedings.

The suit, filed by the state of Washington and joined by Minnesota, argues that the ban harms state economies and disrupts families. In his argument, Washington state Solicitor General Noah Purcell noted that Trump had called for a complete ban on Muslims entering the United States and said the actual purpose of the order was religious discrimination, amounting to a violation of the establishment clause.

Judge Richard Clifton said he was having trouble with the religious animus argument because most Muslims are not affected by the travel ban. “The concern for terrorism with those connected with radical Islamic sects is kind of hard to deny,” he said.

The court arguments had about 137,000 viewers, the largest audience for an oral argument since the 9th Circuit began live-streaming about two years ago, according to assistant circuit executive David Madden. A decision on the TRO could come this week.




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