#1 Lawyer Network
SAN FRANCISCO/WASHINGTON President Donald
Trump’s order temporarily banning U.S. entry to people from
seven Muslim-majority countries came under intense scrutiny on
Tuesday from a federal appeals court that questioned whether the
ban unfairly targeted people over their religion.
During a more than hour-long oral argument, a three-judge
panel of the 9th U.S. Circuit Court of Appeals pressed a
government lawyer whether the Trump administration’s national
security argument was backed by evidence that people from the
seven countries posed a danger.
Judge Richard Clifton, a George W. Bush appointee, posed
equally tough questions for an attorney representing Minnesota
and Washington states, which are challenging the ban. Clifton
asked if a Seattle judge’s suspension of Trump’s policy was “overbroad.”
The 9th Circuit said at the end of the session it would
issue a ruling as soon as possible. Earlier on Tuesday, the
court said it would likely rule this week but would not issue a
same-day ruling. The matter will ultimately likely go to the
U.S. Supreme Court.
Trump’s Jan. 27 order barred travelers from Iran, Iraq,
Libya, Somalia, Sudan, Syria and Yemen from entering for 90 days
and all refugees for 120 days, except refugees from Syria, whom
he would ban indefinitely.
Trump, who took office on Jan. 20, has defended the measure,
the most divisive act of his young presidency, as necessary for
The order sparked protests and chaos at U.S. and overseas
airports. Opponents also assailed it as discriminatory against
Muslims in violation of the U.S. Constitution and applicable
A federal judge in Seattle suspended the order last Friday
and many travelers who had been waylaid by the ban quickly moved
to travel to the United States while it was in limbo.
August Flentje, representing the Trump administration as
special counsel for the U.S. Justice Department, told the
appellate panel that “Congress has expressly authorized the
president to suspend entry of categories of aliens” for national
“That’s what the president did here,” Flentje said at the
start of the oral argument conducted by telephone and
live-streamed on the internet.
When the 9th Circuit asked Flentje what evidence the
executive order had used to connect the seven countries affected
by the order with terrorism in the United States, Flentje said
the “proceedings have been moving very fast,” without giving
He said both Congress and the previous administration of
Democrat Barack Obama had determined that those seven countries
posed the greatest risk of terrorism and had in the past put
stricter visa requirements on them.
“I’m not sure I’m convincing the court,” Flentje said at one
Noah Purcell, solicitor general for the state of Washington,
began his argument urging the court to serve “as a check on
“The president is asking this court to abdicate that role
here,” Purcell said. “The court should decline that invitation.”
The judges pummeled both sides with questions. Clifton
pushed both attorneys about whether there was evidence the ban
was intended to discriminate against Muslims.
“I don’t think allegations cut it at this stage,” Clifton
Clifton later questioned Flentje after the attorney argued
the Seattle judge had second-guessed Trump’s order “based on
some newspaper articles.”
The judge referred to recent televised statements by former
New York Mayor Rudy Giuliani, who advised Trump during his
campaign and transition, that the president had asked him for
advice about implementing a legal Muslim ban.
“Do you deny that in fact the statements attributed to then
candidate Trump and to his political advisers and most recently
Mr. Giuliani,” Clifton asked. “Do you deny that those statements
Trump frequently promised during his 2016 election campaign
to curb illegal immigration, especially from Mexico, and to
crack down on Islamist violence.
National security veterans, major U.S. technology companies
and law enforcement officials from more than a dozen states have
backed a legal effort against the ban.
“I actually can’t believe that we’re having to fight to
protect the security, in a court system, to protect the security
of our nation,” Trump said at an event with sheriffs at the
White House on Tuesday.
The legal fight over Trump’s ban ultimately centers on how
much power a president has to decide who cannot enter the United
States and whether the order violates a provision of the U.S.
Constitution that prohibits laws favoring one religion over
another, along with relevant discrimination laws.
The appeals court is only looking, however, at whether the
Seattle court had the grounds to halt Trump’s order while the
case challenging the underlying order proceeds.
“To be clear, all that’s at issue tonight in the hearing is
an interim decision on whether the president’s order is enforced
or not, until the case is heard on the actual merits of the
order,” White House spokesman Sean Spicer said.
(Additional reporting by Amanda Becker, Timothy Gardner, David
Shepardson and Julia Edwards Ainsley in Washington, Mica
Rosenberg and Leela de Kretser in New York, and Kristina Cooke
and Peter Henderson in San Francisco)
#1 Lawyers Search Engine