— -- Judges from the 9th Circuit Court of Appeals grilled lawyers from the Department of Justice and Washington state Tuesday afternoon over a challenge to Donald Trump's controversial immigration executive order -- questioning whether it constituted a Muslim ban.
The hearing, which was conducted by phone, started with the federal judges pressing the DOJ for evidence that would justify reinstating the order, which curtailed immigrants and refugees from seven majority Muslim countries and banned Syrian asylum seekers indefinitely.
"The president determined that there was a real risk" of terrorism and determined that the "visa screening procedures are crucial," said August E. Flentje, special counselor arguing on behalf of the Justice Department. Federal authorities determined that the seven countries covered by the order "posed the greatest threat for terrorism," Flentje said.
Flentje, seeking a stay of a temporary restraining order granted by a Washington federal court, repeated the administration's argument that the order was not a Muslim ban and that the statements indicating it was were just "newspaper articles."
But Judge Richard Clifton also cited statements by Trump's advisers, including former New York City mayor Rudy Giuliani, and asked if Flentje denied that they were made. "Now, if they were made but not to be a serious policy principle, I understand that," Clifton said. "But if it were made, it is potential evidence and a basis for an argument."
Washington State Solicitor General Noah Purcell said the order has done "irreparable harm" to longtime residents, including state university faculty and students who were stranded overseas as a result of the executive order. The order also affects longtime residents' ability to visit their family, as well as family trying to visit them stateside.
The ban "affects everyone, in a sense," Purcell said.
The judges questioned Purcell about how the executive order could be a Muslim ban when only a percentage of Muslims around the world were impacted. But Purcell countered with Trump's early rhetoric during the campaign where he called for a complete ban on Muslim immigrants, a position Trump has amended several times since then.
The federal judges grilled Purcell on the broadness of the temporary restraining order, questioning whether it should apply to those who never had contact with the U.S.
Purcell ended his argument asking the court to deny the stay. After the hearing concluded, Federal Judge Michelle T. Friedland said the panel was going to aim for a ruling as soon as possible, given the "time-sensitive" nature of the order.
While their decision won't determine the constitutionality of Trump's immigration order, it will determine whether U.S. District Court Judge James Robart's restraining order will remain.
Washington state and Minnesota have argued that Trump's order was likely to cause "irreparable harm" to businesses, schools, family relations and state residents' freedom to travel and is unconstitutional because it discriminates on the basis of religion. The Justice Department said the travel restrictions are a matter of national security and the administration was excluding people from countries with ties to terrorism, not people of a certain religion.
Today, Trump suggested that the legal battle between the two states and the Justice Department could make it all the way to the Supreme Court.
"We're going to take it through the system," said Trump. "It's very important for the country, regardless of me or whoever succeeds at a later date."
On Capitol Hill today, Secretary of >Homeland Security John Kelly defended the immigration executive order, calling it "lawful and constitutional."
Only a week old, the order has sparked protests and outcry across the country. The legal community has been grappling with the order, some travelers have been delayed, and others are wondering if they will be allowed previously approved entry into the United States.