Both sides on the Trump Administration’s travel ban came in for intense questioning by three appellate judges Tuesday, who asked if it amounted to a ban on Muslims and if there are grounds for real concern about people from the seven countries named.
Justice Department lawyer August Flentje asked the 9th U.S. Circuit Court of Appeals panel to lift the stay imposed last week and allow the ban on travelers from seven countries to resume, saying the executive order was only a “temporary pause.”
“It was well within the President’s power,” Flentje told the panel, including Judges William Canby, Richard Clifton and Michelle Friedland.
On January 27, the President ordered the temporary suspension of entries to the U.S. by people holding green cards and people vetted and approved in the refugee programs from seven countries identified as having increased risk of terror activity.
The seven nations are also Muslim-dominated countries, Iran, Iraq, Syria, Libya, Somalia, Yemen and Sudan.
Almost immediately after Flentje began the judges hit him with a flurry of questions about whether the government is arguing the court has no authority to review the case, and whether the order would be legal if it banned all Muslims.
Canby and Friedland appeared sympathetic to the state’s argument to leave in place the nationwide order blocking the Trump travel ban. But Clifton appeared to lean more to the U.S. position.
“Do you deny that there is concern about people coming from those countries separate and apart from what their religion might be,” Clifton asked Noah Percell, solicitor general for the state of Washington.
Clifton also suggests the vast majority of Muslims in the world are unaffected by the travel ban.
“We’re not saying it is a complete ban on Muslims,” Purcell responds, and points out the President and his top advisors have made public statements about Muslim bans and changed their position about how far the executive order goes.
“It is remarkable to have this much evidence of intent, without any discovery,” Purcell said.
Flentje responded that it would be “extraordinary for the courts to enjoin a president’s national security decision-making based on some news articles.”
Friedland ask Flentje about the limits of review of an executive order, and whether a violation of the Establishment Clause of the Constitution would make the entire Executive Order invalid.
The DOJ lawyers argued that even an alien who has been admitted to the U.S. and has developed significant ties to this country and has Fifth Amendment due process protection, “has no protected property or liberty interest in the retention of his visa.”
The DOJ asks that the temporary restraining order be lifted and the travel ban resurrected. At most, if the injunction survives, it should be limited to previously admitted aliens who were temporarily abroad and who now wish to return to the U.S., the papers state.
The court took the case under submission and promised to issue a written ruling quickly.
Case: Washington v. Trump, 17-35105