WASHINGTON — A federal appeals court held a fast-paced telephone hearing on Tuesday over whether President Trump's refugee and travel ban executive order should remain on hold while the legality of the order is hashed out in the courts.
All three judges from the US Court of Appeals for the Ninth Circuit expressed skepticism of the Justice Department's arguments for reinstating the ban, although one — Judge Richard Clifton — also expressed a fair amount of skepticism about the broad scope of the trial court order halting enforcement of the ban.
Judge Michelle Friedland, who presided over the hearing, said at the conclusion of the arguments that the judges, understanding the importance of the case, would issue a decision as soon as possible. The court earlier had said that a decision was not to be expected on Tuesday night but would "probably" come this week.
The hearing was over whether the appeals court should issue a stay of — or, put on hold — US District Judge James Robart's Feb. 3 temporary restraining order (TRO) that halted enforcement of key provisions of the Jan. 27 executive order: the ban on travel to the US from seven majority-Muslim countries and the halt to the refugee program.
Judges William Canby and Michelle Friedland, along with Clifton, heard the arguments over the Justice Department's request to issue a stay of Robart's order pending the outcome of an appeal of the case. Judges Canby and Friedland earlier denied the Justice Department's request for an immediate stay of the TRO, but set a more full briefing schedule that led to Tuesday's arguments.
August Flentje, from the Justice Department, argued for the federal government, facing quick questions about the evidence the government was able to provide to back up the need for the executive order and the harms the federal government would face if the TRO was kept in place while the legal challenges to the executive order were heard. The case before the judges on Tuesday is one of more than a dozen pending in federal courts across the country.
Flentje pointed to statements included in the executive order about "numerous" people convicted of "terrorism-related crimes" in the US and "deteriorating conditions" abroad that could lead to terrorism in the US, leading to pushback from Friedland, at which point Flentje noted that it was congressional and executive branch determinations regarding "countries of concern" that led to the seven countries included in the visa portion.
Clifton pressed back, though, calling that alleged evidence "pretty abstract" and asking whether there was evidence of "real risk." Flentje said that the president decided there is real risk, leading Friedland down a series of questions about whether the executive order is unreviewable by the courts — a possibility raised earlier by the Justice Department in its filing before the appeals court.
"Yes," Flentje said, while acknowledging that there are constitutional limits, but asserting that the review should be limited to the "four corners" of the order itself — and only by those with legal standing to do so. The federal government has argued that Washington lacks standing to bring claims — particularly as they relate to refugees, people who the federal government notes have not yet been in the US.
Later, Canby attempted — with some difficulty — to get Flentje to address whether an explicit "Muslim ban" could be reviewed by courts. Flentje at first declined to answer, saying that Trump's executive order is not a Muslim ban. After some back and forth, however, Flentje partially answered, saying that such a ban could be challenged by a US citizen with a sufficient connection who would be affected by such a ban.
Later, during his rebuttal argument, Flentje added that, specifically, such a ban could be challenged as a violation of the Establishment Clause.
For the state of Washington's solicitor general, Noah Purcell, who argued for the states, he began by arguing that the federal government's request shouldn't even be at the appeals court now.
The order issued by Robart was a TRO, Purcell noted, which is not generally appealable. This, he explained, is different than if it had been a full preliminary injunction, because that order from the court would contain more detailed reasoning to be considered on appeal. When the judges pressed back on the fact that the effect of the TRO was broad — and, as Clifton pressed, "Why should we care" about the technical name on the injunction? — Purcell said that if the appeals court did consider the government's request, it should, at the least, provide a full opinion from which the Supreme Court could consider the matter on appeal.
Purcell then pressed hard on the point that, in the states' view, the Justice Department presented no evidence of "irreparable harm" that it would face if the TRO remains in effect during the litigation — and added that it was the executive order itself that "caused the irreparable harm."
The most skeptical questions for Purcell came from Clifton and addressed the scope of Robart's order, which shut down most of the visa and refugee bans under the executive order. He asked how many people from Washington are affected by the bans, and why the TRO shouldn't be limited to those clearly affected by the claims raised by Washington. Purcell responded that such a limited solution wouldn't answer the states' broader constitutional claims.
Following up on Canby's "Muslim ban" question and the states' argument that the ban, nonetheless, was based in religious discrimination, though, Clifton told Purcell that he was struggling with the religious animus argument. Specifically, he said that his quick math showed that the percentage of all Muslims worldwide who are living in the seven countries affected by the ban was low, perhaps around 15 percent.
Purcell said that he hadn’t done the math, but that to prevail, the states didn’t have to show that all Muslims were affected. Rather, they just had to show that the executive action was motivated by a desire to stop Muslims from entering the United States.
Purcell pointed to statements that Trump made on the campaign trail calling for a ban on Muslim immigration. Is the executive order at issue that Muslim ban, Clifton asked. No, Purcell said, it wasn’t that broad.
Flentje, during his rebuttal argument, denied that the executive order discriminated on the basis of religion. He said it was “extraordinary” for the court to interfere with the president’s national security determination based on “some newspaper articles,” and this was instance of “troubling” second-guessing of the president.
Clifton, though, asked if Flentje denied that the president and his advisers had made the statements referencing a Muslim ban that were cited in the case. No, Flentje said, but he pointed out that Robart had already said he wasn’t going to look at campaign statements.
Clifton said that the timing might affect the weight given to the statements, but it doesn't change whether they were said or not.
Over the past two days, the states of Washington and Minnesota — who are suing the federal government over the order — and the Justice Department, as well as several outside groups, filed briefs with the court over the statutory and constitutional questions at issue in the challenge to Trump's order.
The court provided an audio livestream of the arguments — providing the rare chance for the public to listen in real time to the arguments over the authority of the president, and the courts, on questions relating to immigration and national security issues.
There were approximately 137,000 connections to the court's audio livestream during the arguments — a number that did not count those who listened through the audio feed provided to CNN — according to a public statement provided by the court's assistant circuit executive, David Madden, after the arguments.
The appeals court generally provides a video livestream of arguments, but the quick turnaround of scheduling for Tuesday's arguments meant that the hearing took place over the phone. Friedland, who presided over the arguments, was in San Jose, California; Canby was in Phoenix; and Clifton was in Honolulu.