Karen Shore holds up a sign outside of the 9th U.S. Circuit Court of Appeals in San Francisco, Tuesday, Feb. 7, 2017. A panel of appeals court judges reviewing President Donald Trump’s travel ban hammered away Tuesday at the federal government’s arguments that the states cannot challenge the order. (AP/Jeff Chiu)
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A federal appeals court heard argument on a request from President Donald Trump’s administration to stay a temporary restraining order against the “extreme vetting” executive order commonly known as the Muslim ban.
Justice Department attorney August E. Flentje was asked multiple times to produce evidence for why the stay was needed to prevent irreparable harm. He was able to provide zero factual claims, and that seemed to fluster the Ninth Circuit Court of Appeals judges.
“These proceedings are moving quite fast,” Flentje declared, when he was unable to come up with a satisfactory answer that would prove the executive order was needed to keep the United States safe. He later added with little specificity that there were Somalis connected to the terrorist group, al Shabaab. There are “other individuals,” who pose a threat but those people are not in the record.
When Flentje complained about proceedings moving too quickly, Judge Michelle Friedland pointed out that it was the government that filed an emergency motion. They sped up the process without waiting for a lower court to rule on the merits of a case brought by the states of Washington and Minnesota.
“Are you arguing that the president’s decision is unreviewable?” Friedland asked. To that, Flentje said the appeals court should only look at U.S. citizens’ claims.
The Justice Department attorney did not believe the courts should weigh allegations of bad faith on the part of the president and his staff of advisors. He suggested the case be “confined to the four corners of the document.” But the judges did not seem to fully buy that because the states have public statements suggesting the officials had an intent to target Muslims with an order that they crafted and gave a legal veneer.
Judge William Canby bluntly asked what would happen if Trump said, “We’re not going to let any Muslims in.” Canby wondered if the president could do that and whether anyone would be able to challenge that action. Flentje was pressed into answering and said someone impacted by that ban would be able to file a complaint in court.
“I’m not sure I’m convincing the court,” Flentje said. He shifted slightly to argue the states’ claims were “overbroad.”
Noah Purcell, the solicitor general for the state of Washington, focused on the argument that Trump would like the judicial branch to shirk its duty as a check on the executive branch and reinstate the executive order. This would throw the country back into chaos, as was on display when the order was first signed.
Judge Richard Clifton challenged Purcell over whether the states had any evidence of religious discrimination. He noted the order only applies to seven Muslim-majority countries, a small percentage of Muslims in the world. Purcell insisted the states only had to prove the executive order was motivated in part by a desire to harm Muslims.
The states have had no opportunity to collect discovery evidence yet. What they have primarily to rely upon, when making arguments, are statements made by Trump and advisors like former New York City Mayor Rudy Giuliani.
Whether President Trump has the authority to single out individual countries and prevent those citizens from coming to the U.S. was raised by Clifton. Purcell appeared to contend those instances were much more focused and better tailored for security than what the Trump administration has conceived.
Friedland later asked the Justice Department attorney why the case should not proceed to discovery to determine whether the Trump administration had some intent to harm Muslims. While Flentje did not say the states should not be allowed to do that, he argued, “It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles, and that’s what has happened here. That is very troubling second-guessing of the national security decision made by the president.”
The appeals court did not indicate when they would make a decision on whether to nullify the stay and reinstate the executive order.
On February 4, the administration filed an emergency motion with the appeals court after U.S. District Judge James Robart ruled against the administration and issued a broad temporary restraining order that led the Homeland Security Department and State Department to pause their enforcement of the ban. That made it possible for non-U.S. citizens with visas and refugees, who had gone through vetting processes, to travel to the U.S., as they were able to do before Trump’s order.
The Trump administration maintained [PDF] the temporary restraining order “contravenes the constitutional separation of powers, harms the public by thwarting enforcement of an executive order issued by the nation’s elected representative responsible for immigration matters and foreign affairs, and second-guesses the president’s national security judgment about the quantum of risk posed by the admiration of certain classes of aliens and the best means of minimizing that risk.”
The states of Washington and Minnesota, which brought the complaint against the ban, responded [PDF] by accusing Trump of “unleashing chaos” when he signed the executive order and urging the court not to “unleash chaos again by staying the district court order.” They called the appeal by the administration “improper.”
The Trump administration replied [PDF] by asserting the district court erred in entering the injunction. It was a “vastly overbroad” injunction that extended “far beyond the state’s legal claims to encompass numerous applications of the order that the state does not even attempt to argue are unlawful.” It insisted the states do not have standing or the right to seek judicial review.
Ninety-seven companies, including Apple, Facebook, Google, Microsoft, Netflix, Twitter, and Uber, backed the complaint challenging the Muslim ban. Sixteen US attorney generals backed the challenge, and so did several former top national security officials from the military and CIA.
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