Three judges from the 9th U.S. Circuit Court of Appeals grilled lawyers for the Department of Justice and the state of Washington on Tuesday in an extraordinary hearing over Donald Trump's executive order temporarily banning immigrants from seven majority-Muslim countries.
The case before the court centers on the Trump administration's appeal of a nationwide temporary restraining order issued on Friday by U.S. District Court Judge James Robart in Seattle. The executive order also placed a 120-day hold on admitting any refugees to the U.S. and indefinitely blocked Syrian refugees from entering.
The administration asserts that the restraining order is "vastly overbroad" and an improper judicial encroachment on the authority of the president.
Thousands of people tuned in to listen to an audio live stream of the hearing. The judges have indicated that a ruling could come as soon as today.
Arguing for DOJ was August Flentje, a special counsel to the assistant attorney general, civil division. Washington state's solicitor general, Noah Purcell, presented the case for his state and Minnesota. Nearly 100 technology companies, as well as numerous civil rights groups and lawyers, filed amicus briefs with the court in support of Washington state.
Hearing the case via telephone conference were Circuit Judge Michelle Friedland (appointed by President Barack Obama) in San Jose, California, who presided over the hearing; Senior Circuit Judge William C. Canby (appointed by President Jimmy Carter) in Phoenix; and Senior Circuit Judge Richard Clifton (appointed by President George W. Bush) in Honolulu.
Here were the key moments from the hearing:
1. Judges Ask for Evidence to Support the Travel Ban
Arguing for the federal government that the executive order was "well within the president's power as delegated to him by Congress," Flentje soon found himself on the defensive as Friedland pressed for evidence the government relied on to determine the risks posed by immigrants from the seven countries affected by the executive order.
"Has the government pointed to any evidence connecting these countries with terrorism?" she asked.
"These proceedings have been moving very fast," he replied, and cited decisions made during the Obama administration to restrict nationals of those seven countries from eligibility for a visa waiver program. "And that is, I think, the strongest type of reliance, where the president is relying on Congress' determination that these are countries of concern."
Chiming in, Canby pointed out that during last week's hearing in Seattle, the federal government's lawyer was unable to provide any examples of federal crimes committed in the U.S. by visa holders from the seven countries.
"Yes, your honor," Flentje answered. "These proceedings have been moving quite fast, and we're doing the best we can." He then offered an example of people from Somalia who were convicted in the United States of supporting Somali-based terrorist group al-Shabaab.
"Is that in the record?" Friedland asked. "Can you point us to where in the record you are referring"
"It is not in the record," Flentje conceded.
2. Washington Solicitor General Argues Ban Is Motivated by Religious Discrimination
Purcell argued that "shocking evidence" of Trump's "intent to discriminate against Muslims" is proof that the travel ban is unconstitutional because it was motivated by religious discrimination.
But he was repeatedly challenged on that assertion by Clifton, who pointed out that the executive order affects only a small percentage of Muslims worldwide.
"I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected," Clifton said. "And where the concern for those connected with radical Islamic sects is kind of hard to deny."
"We're not saying that this is a complete ban on Muslims entering the country," Purcell said, referring to the broad exclusionary policy Trump promoted early in his presidential campaign.
"We do not need to prove that this order harms only Muslims or that it harms every Muslim," Purcell continued. "We just need to prove that it was motivated by a desire to harm Muslims."
3. Judges Ask Whether the President Could Legally Ban All Muslims
Flentje was repeatedly asked by the judges if the president could explicitly bar all Muslims from entering the country without review by the judicial branch.
"Could the president say in the order, 'We're not going to let any Muslims in'?" Canby asked.
"That's not what the order does here," Flentje replied, avoiding a direct response.
"I know," Canby said. "Could he do that?"
"That's not what the order does," Flentje answered twice more.
As the hearing drew to a close, Flentje conceded, "If there were an executive order that prevented the entry of Muslims, there would be people with standing to challenge that ... but that's not the order we have here. This order is limited to the countries defined by Congress."
"But the allegations are that ... was the motivation," Friedland said. "And plaintiffs have submitted evidence they suggest shows that was the motivation. So why shouldn't the case proceed perhaps to discovery to see if that was really the motivation or not?"
"We're not saying the case shouldn't proceed," Flentje said. "But it is extraordinary for a court to enjoin the president's national security determination based on some newspaper articles."
4. Solicitor General Points to the Chaotic Rollout of the Executive Order
Purcell argued that the government's shifting interpretations of the executive order led to even legal permanent U.S. residents' getting swept up in the chaotic first few days.
"They changed their minds about five times about whether it applies to those people in the time since the order issued, and now they say it doesn't," Purcell said.
And while White House counsel Don McGahn has since issued a memo to federal agencies stating that the ban does not apply to legal permanent residents, Purcell argued that until the administration changes the language of the order "to make that crystal clear," the judges should not discount the possibility that the administration could again alter the enforcement of the ban.
Clifton later raised concerns with Flentje about the legal authority of the White House counsel to instruct government departments about the meaning of the order. "Why shouldn't we look to the executive branch to more clearly define what the order means rather than looking through the lens of subsequent interpretations?" Clifton asked.
Flentje responded, "The guidance from the White House counsel is the definitive interpretation of the order, and the White House counsel speaks for the president in this context."
5. DOJ Lawyer Says Temporary Restraining Order Is Too Broad
Flentje argued that the temporary restraining order issued by Robart last week is too broad and that the plaintiff states have no standing to challenge the president's authority to enforce provisions of the order affecting refugees and visa holders who have never before been admitted to the U.S.
He argued that if the appeals court decides to allow the restraining order to remain in place, it should be modified to apply only to "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future," he said.
But Purcell argued that limiting the restraining order in that way "would not remedy the [executive] order's violation" of the establishment clause in the Constitution "by favoring one religious group over another."