The US Justice Department faced tough questioning Tuesday as it urged a court of appeals to reinstate President Donald Trump’s travel ban targeting citizens of seven Muslim-majority countries — put on hold by the courts last week.
The contentious hearing before three judges on the San Francisco-based 9th Circuit Court of Appeals focused narrowly on whether a restraining order issued by a lower court should remain in effect while a challenge to the ban proceeds. But the judges also jumped into the larger constitutional questions surrounding Trump’s order.
In an hour-long telephone hearing, an attorney for the government argued that the immigration restrictions were motivated by national security concerns and that a federal judge had overstepped his authority in suspending them.
“This is a traditional national security judgment that is assigned to the political branches and the president,” said the Justice Department lawyer, August Flentje.
He said Trump acted perfectly within his powers in issuing the January 27 executive order in the interest of the United States.
The three-judge panel from the court of appeals often appeared skeptical, with Judge Richard Clifton saying at one point that the government’s argument was “pretty abstract.”
They questioned Flentje about the evidence connecting the countries targeted to terrorism, and pressed him on whether the ban amounts to religious discrimination — as its opponents claim.
Judge Clifton asked Flentje whether he denied statements by Trump and former New York City Mayor Rudolph Giuliani, who said recently that Trump asked him to create a plan for a Muslim ban. Flentje did not dispute that Trump and Giuliani made the statements.
Listen to the telephone hearing:
Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked whether the government has any evidence connecting the seven nations to terrorism.
An attorney representing the states of Washington and Minnesota — which brought the federal lawsuit against Trump’s ban — also came under sustained questioning as he urged the judges to keep the decree on hold while the case runs its course.
Judge Clifton, a George W. Bush nominee, asked ban challengers what evidence they had that it was motivated by religion.
“I have trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected.” Only 15 percent of the world’s Muslims were affected, the judge said, citing his own calculations. He added that the “concern for terrorism from those connected to radical Islamic sects is hard to deny.”
Noah Purcell, Washington state’s solicitor general, cited public statements by Trump calling for a ban on the entry of Muslims to the US He said the states did not have to show every Muslim is harmed, only that the ban was motivated by religious discrimination.
“It has always been the judicial branch’s role to say what the law is and to serve as a check on abuses by the executive branch,” said Solicitor General Noah Purcell.
“That judicial rule has never been more important in recent memory than it is today, but the president is asking… to reinstate the executive order without full judicial review and throw this country back into chaos,” Purcell added.
The hearing does not touch on the constitutionality of the decree itself, which is challenged in court by Washington and Minnesota, with support from numerous advocacy groups.
A court spokesman said a ruling would likely come later this week.
Trump’s executive order barred entry to all refugees for 120 days, and to travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days, triggering chaos at US airports and worldwide condemnation.
The live broadcast of the oral arguments on the court’s YouTube site had 137,000 connections — by far the largest audience for an oral argument since the 9th Circuit began live streaming about two years ago, said David Madden, a spokesman for the court. Some news outlets also carried the live stream.
Whatever the court eventually decides, either side could ask the Supreme Court to intervene.
The government asked the appeals court to restore Trump’s order, saying that the president alone has the power to decide who can enter or stay in the United States. Several states insist that it is unconstitutional.
The judges repeatedly questioned Flentje on why the states should not be able to sue on behalf of their residents or on behalf of their universities, which have complained about students and faculty getting stranded overseas.
Purcell said that restraining order has not harmed the US government. Instead, he told the panel, Trump’s order had harmed Washington state residents by splitting up families, holding up students trying to travel for their studies and preventing people from visiting family abroad.
A decision by the 9th Circuit was likely to come later this week, Madden said.
Trump said Tuesday that he cannot believe his administration has to fight in the courts to uphold his ban, a policy he says will protect the country.
“And a lot of people agree with us, believe me,” Trump said at a round table discussion with members of the National Sheriff’s Association. “If those people ever protested, you’d see a real protest. But they want to see our borders secure and our country secure.”
Homeland Security Secretary John Kelly told lawmakers that the order probably should have been delayed at least long enough to brief Congress about it.
If the case does end up before the Supreme Court, it could prove difficult to find the necessary five votes to undo a lower court order. The Supreme Court has been at less than full strength since Justice Antonin Scalia’s death a year ago. The last immigration case that reached the justices ended in a 4-4 tie.
How and when a case might get to the Supreme Court is unclear. The travel ban itself is to expire in 90 days, meaning it could run its course before a higher court takes up the issue. Or the administration could change it in any number of ways that would keep the issue alive.