The 9th U.S. Circuit Court of Appeals heard oral arguments Tuesday over a lower court's decision to halt President Trump's executive order banning travel from seven majority-Muslim countries.
Trump signed the order on Jan. 27, which banned refugees from entering the U.S. for 120 days, blocked for 90 days travel from Iran, Iraq, Libya, Somalia, Sudan and Yemen, and barred immigration from Syria indefinitely. Trump said the ban was needed to give his intelligence agencies time to implement "extreme vetting" procedures for people coming from those terror-prone countries.
Washington state and Minnesota joined in a lawsuit against the ban and won a temporary restraining order from a federal judge in Seattle. The circuit court will decide this week whether to uphold that ruling. Three judges heard the oral arguments during a telephonic court hearing: Michelle Friedland, San Francisco-based judge appointed by then-president Barack Obama; William Canby, a Phoenix-based judge appointed by then-president Jimmy Carter; and Richard Clifton, a Honolulu-based judge appointed by then-president George W. Bush.
Here are the top takeaways from the hearing:
Skepticism for Trump's argument
It took only minutes for the president's plan to come under sharp questioning from all three judges — hardly a surprise for an appeals court known as the most liberal in the country.
Friedland asked for evidence that the specific countries are connected to terrorism. Canby noted that no visa-carrying travelers from the countries were implicated. Clifton asked why current visa procedures, which can take months or years to meet, were insufficient.
When August Flentje, representing the Justice Department, said more evidence would be forthcoming as the case progresses, Friedland said, "Why should we be hearing this now?" For Flentje — and the president — it was not a heartening reception.
Was it a "Muslim ban?"
Clifton repeatedly questioned Noah Purcell, the solicitor general representing Washington state, over his "allegations" that there was "religious animus" behind Trump's order.
The First Amendment forbids the establishment of religion in the U.S., but Clifton asked how Trump's order can be viewed as a ban on Muslims if the seven countries targeted only represent about 15% of the global Muslim population.
Purcell cited "rather shocking evidence" of Trump calling for a ban on Muslims throughout the presidential campaign, both in speeches and through his Twitter account. After his inauguration, Trump told the Christian Broadcasting Network that he wanted to give immigration preference to Christians who were being persecuted in majority-Muslim countries. "This was done to favor one religious group over another," Purcell said. "So we should be allowed to go forward on that claim."
The security risks
Clifton also wondered why Trump's order cannot be viewed as a necessary national security action, since even the Obama administration identified the seven countries as terror-prone.
"It would be possible to identify these countries as a source of concern and possibly as the subject of special treatment without having religious motivation or discriminatory intent behind it," he said. "Those countries are a concern from a terrorist perspective."
Purcell countered that the Obama administration treated those countries very differently, simply requiring previously-approved immigrants to reapply for visas if they had visited those countries. "That is eminently different from a complete ban on travel to this country," he said.
A possible compromise?
As the court challenge to Trump's executive order has progressed, the administration has acknowledged that some immigrants are less suspicious than others — namely, those who already are lawful permanent residents.
Clifton asked if it would be possible to block Trump's directive as it applies to those people — some of whom were caught in transit when the order was implemented, resulting in them being detained or turned away. That would allow those who had never visited the United States to be blocked during the temporary ban. “We treat people from North Korea differently than we treat people from France," he said, calling such judgement calls "commonplace in foreign affairs.”
Heard ‘round the world
Tuesday’s hearing offered a rare opportunity for the general public to hear the federal court system in action, and listeners far and wide were eager to tune in. A court spokesman said 137,000 people from as far away as France, Germany and Japan listened to the live audio stream on the court’s YouTube channel. David Madden said that was “by far” the largest audience for an oral argument since the court began live-streaming oral arguments two years ago. The feed also was carried live on CNN, MSNBC, Fox News and on USA TODAY’s web site.