9th Circuit judges hammer both sides in travel ban case

President Donald Trump’s travel ban faced its toughest test yet Tuesday as a panel of appeals court judges hammered away at the administration’s claim that the ban was motivated by terrorism fears while also directing pointed questions to the opposing attorney, who challenged the executive order on grounds that it unconstitutionally targeted Muslims.

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, which temporarily suspended the nation’s refugee program and immigration from seven mostly Muslim countries that have raised terrorism concerns.

The hearing was conducted by phone - an unusual step - and broadcast live on cable networks, newspaper websites and various social media outlets. It attracted a huge audience, with more than 130,000 alone tuned in to the court’s YouTube site to hear audio.

Judge Richard Clifton, a George W. Bush nominee, asked an attorney representing Washington state and Minnesota what evidence he had that the ban was motivated by religion. The two states are suing to invalidate the ban.

“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 are 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 U.S. He said the states did not have to show every Muslim is harmed, only that the ban was motivated by religious discrimination.

Clifton also went after the government’s attorney, asking whether he denied statements by President Trump and former New York City Mayor Rudolph Giuliani, who said recently that Mr. Trump asked him to create a plan for a Muslim ban. Judge Michelle T. Friedland, who was appointed by President Obama, asked why the case should not move forward to determine what motivated the ban.

“We’re not saying the case shouldn’t proceed, but we are saying that it is extraordinary for a court to enjoin the president’s national security decision based on some newspaper articles,” said August Flentje, who argued the case for the Justice Department.

Under questioning from Clifton, Flentje did not dispute that Mr. Trump and Giuliani made the statements.

Clifton said he understood if the government argued that statements by Trump and his advisers should not be given much weight, but he said they are potentially evidence in the case.

Friedland also asked whether the government has any evidence connecting the seven nations to terrorism.

Flentje told the judges that the case was moving fast and the government had not yet included evidence to support the ban. Flentje cited a number of Somalis in the U.S. who, he said, had been connected to the al-Shabab terrorist group.

The ban has upended travel to the U.S. for more than a week and tested the new administration’s use of executive power.

Whatever the court eventually decides, either side could ask the Supreme Court to intervene.

The government asked the appeals court to restore President Trump’s order, arguing 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.

As stated in the government’s brief to the court, Flentje offered the 9th Circuit a third option, saying the court could exempt from the ban people who have previously been admitted to the U.S., but keep it in place for people who have never been to the country.

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 U.S. 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.

Mr. 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.

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Trump’s travel ban: Why the 9th Circuit could flip and unexpectedly grant a stay

The U.S. Court of Appeals, 9th Circuit, undertook an extraordinary review Tuesday evening, hearing arguments for and against a stay of district court action that blocked President Trump’s Executive Order on immigration.  From the outset, it was a pitched battle before a notoriously liberal Circuit.  That said, the Justice Department acquitted itself well – and may have won an upset.  If not the Super Bowl, there were surprises.

Kick off was simple. Justice briefed a three-judge panel on the need for a temporary pause in migration from seven countries identified by Congress and the prior Administration as terrorist risks.  They laid out the President’s constitutional authority, equities against the temporary restraining order, and law that supported a swift stay.

Seconds in, the Carter appointee Judge William Canby interrupted proceedings, demanding “evidence of the need for this executive order.” Findings were patiently offered, including the need to review refugee screening and visa process, as well as recent events.

Before Counsel for the United States could continue, Canby threw a second block:  “Can you point to any evidence connecting these countries to terror?” Justice methodically noted that such evidence has existed for years.  Moreover, it was acknowledged by Congress and the prior Administration, which is why the seven countries faced visa restrictions.  They present a “significant risk,” making them “countries of concern.”

Canby then assumed the role of a one-man National Security Council. “Isn’t the concept of risk too abstract?  Is there any reason to believe there is a real risk?  What changes to support significant risk?”  Justice kept to the playbook, kept the drive going.  “The President determined there is a real risk, “came into office to protect the national security of the country,” and believes “visa screening procedures are crucial.”  The Executive Order is grounded and limited.

The next hit was for terrorism examples.  Where had there been terrorist events in the United States traced to these countries?  Of course, the answer was that the Executive Order aims to prevent such incidents.  Justice began, “people from Somalia have been connected to Al-Shabaab, a terrorist –“

Obama’s nominee, Judge Michelle Friedland, interrupted and flew at Justice:  “You appealed before you developed the record?”  No, said Justice, we “sought immediate relief because a lower court tried to override a presidential decision on level of tolerable national security risk” and “the President is the official charged with making that judgement.”

A tactical switch. “Is the decision reviewable?” pressed Friedland.   Yes, was Justice’s answer, but deciding what is “detrimental” to “fundamental sovereignty” is a president’s chore.  Judicial review is limited to whether the presidential determination of risk is “bona fides” and “legitimate.”

Friedlander quickly slid into “bad faith.”  Referring to the President, she asked: “Are there not allegations of bad faith?  Don’t we need to look at that?” Justice got firm. “Review needs to be confined to the four corners of the document,” and “standing.”

Judge Canby now pressed his luck.  He now argued that a third party – a State – might bring an action for anyone, as they might for clean air. The analogy flopped.  The United States observed, in the immigration context, a third party cannot challenge visa denials. That is case law. Canby cited a case where a wife sued for a husband. The United States spun out of the tackle, noting both had constitutional rights.

Now the field got muddy.  These Democrat-appointed judges wanted to reach the merits, but were stiff armed.  They wanted to argue the Executive Order offended religious freedom, based on favoring one faith over another and violating the “no establishment” clause, or through “equal protection.”  They got little traction. 

Finally, Friedland asked: “Could the President simply say he would not let Muslims in?”  Justice did not fall for the juke.  They ran a tight pattern.  “That is not what the Executive Order does.”  Later they were blunt, “no.”

Nearing halftime, “standing” got discussed, the United States explaining that only citizens have standing in an immigration case.  If States could sue on behalf of anyone at any time, the concept of standing would have no meaning.  The restraining order was overbroad, president within his rights, stay required.  The Democrat-appointed judges had still made yardage.

Next came the States, Washington and Minnesota. They took the field with enthusiasm, first arguing procedure then the constitution.  Some quips were simple, others Hail Mary passes – all tinged with recrimination toward the President.

Arguing that freedom of religion affected everyone, entitling States to standing, they claimed “irreparable harm” to religious liberty.  When they fumbled, they were up fast.  But now came another player.

At last, George W. Bush’s nominee Judge Richard Clifton stepped up.  He began throwing pinpoint passes.  Where was violation of an American’s religious liberty?  Where in the “four corners of the document?”  Suddenly, the rejoinder was more “bad faith.”

Where “bad faith?” The States said, although narrow implementation now preserved rights for visa holders and permanent residents, the order was prejudicial.  The text left vulnerable “half a million in the United States.”  Judge Clifton was having none of that.  He began a new drive.

Where was nefarious intent, “discriminatory animus?”  Where was the constitutional violation, absent text or intent to support the claim?  On very weak footing, how did the States claim “likelihood of success” on the merits? Without that likelihood, how could a temporary restraining order stand? The States retreated to remarks about implementation, claims of anti-Muslim.

Clifton had them. “A bit of quick pencil math shows that the order only covers 15 percent of worldwide Muslims, how can that produce religious discrimination on either ‘no establishment’ or ‘equal protection’ grounds?  How can you infer religious animus from that, if the vast majority around the world are not affected?”  Bingo! Touchdown!     

When the States cited campaign headlines, Clifton noted the lower court held those not relevant.  Clifton turned to hard facts.  Wasn’t terrorism identified with these seven countries?  Weren’t they “countries of concern” based on “significant risk” – as assessed by the prior administration?  Was the prior administration “religiously motivated” in making that determination?  Another surprise touchdown! 

If the underlying restraining order and arguments against the stay required “likelihood of success” on “religious animus,” and there was none, why not grant the stay?  The issue was not about the stay – but about the underlying temporary order.  He said the States “misunderstood the standard.”  More points, maybe conversions.

Friedland jumped in. They were fumbling. “Weren’t you going to supplement the record with added exhibits” on religious animus?  Oh yes, yes, that’s right.  The States said they just had not had enough time to prepare. Wrong argument.

Clifton threw for final points.  “Don’t tell us that you did not have the time to prove likelihood of success – that allegation will not cut it at this stage.”  The air was thick with possible reversal, now.  Friedland jumped again.  “You want a reasoned opinion, right?  One that will address your concerns, right?”  Yes, yes.

Maybe the winning points – came last.  From Clifton.  Arguments of national origin, as a basis for discrimination, flew in the face of past lawful orders.  Cuba for example?  This is the prerogative of a president, right?  Isn’t North Korea different from France?  Touche!

So, could the unlikely happen? Could a Ninth Circuit panel, split two-to-one activist judges, actually issue a stay – permitting the President’s Order to stand, at least for now?  Might Clifton’s questions convert someone, one of the two? Not likely, but stranger things have happened. This has been an unlikely season start to finish, November through last Sunday.  Maybe the unlikely is now likely – or maybe we will meet at the U.S. Supreme Court.  We shall all know soon.

5 Questions After Hearing The Oral Arguments Over Trump's Travel Ban

Two lawyers, three judges, thousands of ordinary Americans: On Tuesday night, oral arguments in Washington v. Trump attracted an unusually large audience for audio-only legal proceedings.

The case centers on President Trump's controversial executive order that would temporarily bar all new refugees from entering the U.S., as well as visa holders from seven majority-Muslim countries.

Those restrictions are currently not being enforced, after a federal judge granted the states of Washington and Minnesota a temporary restraining order blocking the travel ban from going into effect. It was that temporary restraining order — not the travel ban itself — that was being debated in the arguments Tuesday night before three judges on the 9th U.S. Circuit Court of Appeals.

But along the way, the lawyers and judges raised a number of larger issues — some of which, for the many nonlawyers listening along, might require a little context or explanation.

Here are a few key questions that were raised, directly or indirectly, during the arguments:

How many Muslims would be affected by the travel ban? (And does it matter?)

During oral arguments, Judge Richard Clifton suggested that the seven countries named in President Trump's travel ban make up less than 15 percent of the world's Muslim population.

Clifton's "quick penciling," as he described it during the hearing, is close. Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen made up just more than 12 percent of the world's Muslim population in 2010, based on NPR's analysis of the latest data compiled by the Pew Research Center.

During the hearing, Clifton questioned whether the travel ban could be considered religious discrimination against Muslims if the majority of Muslims worldwide were not affected. Here's how Washington state Solicitor General Noah Purcell responded:

"Your honor, the case law from this court and from the Supreme Court is very clear that to prove religious discrimination, we do not need to prove that this order harms only Muslims or that it harms every Muslim. We just need to prove that it was motivated in part by a desire to harm Muslims."
Laurence Tribe, a constitutional law professor at Harvard Law School, says there is case law that backs up Purcell's argument. "There is no precedent for the ridiculous suggestion that discrimination against members of a religious group becomes constitutionally acceptable whenever only a small percentage of that religious group is victimized," Tribe tells NPR. "The entire course of jurisprudence under the Religion Clauses is incompatible with any such arithmetic approach to the issue."

What rights do noncitizens have under the U.S. Constitution?

As he wrapped up his initial remarks, August Flentje, special counsel to the assistant attorney general, said that in some cases, noncitizens have "no rights" that the state of Washington could try to protect.

Cornell University Law School professor Stephen Yale-Loehr says that's basically true. He explains that the constitutional rights of noncitizens exist on a sort of spectrum.

"At one end of the spectrum someone who's never been to the United States, even for visiting Disney World, really has no rights," he tells NPR. "On the other end of the spectrum would be somebody who's been given a green card ... they have a lot of constitutional rights."

But it's more complicated than that. It matters where someone is. Someone in the U.S. — even illegally — has constitutional rights, such as the right to due process and the freedoms under the First Amendment, Yale-Loehr says. Even people who aren't in the U.S. and never have been might have ties to a U.S. resident or citizen who has rights of his own — as the state of Washington pointed out in its arguments.

What are the limits of presidential power?

The Department of Justice argues that the president has broad powers when it comes to immigration and national security. In court filings, and again in oral arguments, the DOJ suggested that it was inappropriate for judges to "second-guess" the president's judgment on national security issues.

But the judges seemed to be interested in the limits of those presidential powers, as well as when "second-guessing" would be called for.

"Could the president simply say in the order, we're not gonna let any Muslims in?" asked Judge William Canby. Flentje replied several times that that's not what Trump's executive order does.

"I know that," Canby said. "But could he do that?" He kept pushing for an answer to his hypothetical question.

Flentje conceded that a different plaintiff — specifically, a "U.S. citizen with a connection with someone seeking entry" — might be able to sue for religious discrimination in that situation.

What proof is there that Trump's travel ban is motivated by concerns over terrorism — and what evidence that it's meant to block Muslims?

The Justice Department argues that the temporary travel ban on travelers from seven mostly Muslim countries is necessary to protect U.S. national security. But Judge Michelle Friedland pushed the government to support that claim.

"Has the government pointed to any evidence connecting these countries with terrorism?" Friedland asked the Justice Department's lawyer.

Flentje said that there is no such evidence on the record in this case. But he did mention al-Shabab, an Islamic militant group based in East Africa that the U.S. government considers a terrorist organization. And he pointed out that Congress and the Obama administration had already authorized heightened security for visitors from these countries.

Meanwhile, when Purcell argued on behalf of the states, Clifton asked him to lay out evidence for the states' allegation that the order, which doesn't mention Islam or Muslims by name, is actually motivated by religious bias.

Purcell had described the evidence of intent as "rather shocking" but didn't go into detail. Friedland pointed out that the state included evidence in its briefs — including remarks from Trump associate Rudy Giuliani about what he said was the administration's desire to impose a Muslim ban "legally."

What might happen next?

While Tuesday's hearing veered into questions of constitutional law, the federal appeals judges are deciding only whether to reinstate Trump's travel ban while the legal battle over his executive order continues.

The 9th Circuit panel said it won't be making a decision on Wednesday, but the ruling could come later this week.

If the three-judge panel decides to bring the travel ban back, lawyers for Washington state and Minnesota could ask a lower court to grant a preliminary injunction to, again, suspend the ban, which could be issued as early as Feb. 18, according to this court filing.

Regardless of what the appeals judges decide, the case is likely to end up before the U.S. Supreme Court.

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