The U.S. Court of Appeals for the 9th Circuit heard arguments on Tuesday that will help determine whether last Friday’s temporary injunction staying President Donald Trump’s executive order banning travel for refugees and people from seven-majority Muslim countries will remain in place.
All three judges—two appointed by Democrats and one by a Republican—seemed at first seriously skeptical of the government’s position that the stay needed to be overturned and the ban reimplemented. But as questions turned to the solicitor general of the state of Washington, Noah G. Purcell, who was arguing on behalf of keeping the stay in place, Judge Richard Clifton—the lone Republican appointee on the panel—offered challenges to the plaintiff’s case that the ban was targeted specifically at Muslims and that the move was not within the president’s discretion for national security reasons.
Still, the U.S. government’s attorney, August Flentje, had serious difficulty addressing concerns of all three judges about two issues that seemed as though they might play a critical role in the outcome of this proceeding. Specifically, the longtime Justice Department lawyer seemed unable to address the state of Washington’s arguments that the president’s plan was motivated by religious animus and that the implementation of it was so chaotic as to make a partial reimplementation of the executive order, as requested by the government if the court decided not to overturn the entire stay, practically impossible and also legally unsound.
Here are the key highlights that demonstrate where things seemed to go wrong for the U.S. government. You should note that Clifton is a George W. Bush appointee and was the judge most skeptical of the state of Washington’s claims, while Judge Michelle Friedland was a Barack Obama appointee and Judge William Canby Jr. was a Jimmy Carter appointee.
Does the DOJ have any evidence pointing to constitutionally valid reasons for the order? No!
Friedland: Has the government pointed to any evidence connecting these countries with terrorism?
Flentje: These proceedings have been moving very fast. And the strongest point on that is that in 2015 and 2016, both Congress and the administration made determinations that these seven countries posed the greatest risk of terrorism and in doing so restricted visa waivers to people who had even traveled to those countries over the last five or six years. The executive order relies on that determination and I think that is the strongest type of reliance where the president is relying on Congress’ determination that these are countries of concerns and Congress’ procedures to identify countries of concern based on significant terrorist activity in the countries.
Clifton: I understand the concept of that but it’s pretty abstract. It’s not like there haven’t been processes in place to take some care with people coming from those countries. Indeed those are determinations in the statute and by the prior administration you’re pointing to. Is there any reason for us to think that there’s a real risk or that circumstances have changed such that there would be a real risk if existing procedures weren’t allowed to stay in place while the new administration conducts it’s review.
Flentje: Well, the president determined that there was a real risk. ….
Canby: In naming those seven countries what Congress did was to provide that people coming from those seven countries had to get visas. In other words, they couldn’t just come into the country without a visa. That permitted, of course, the usual investigations before you give somebody a visa. … The District Court asked the representative of the Department of Justice, how many federal offenses have we had being committed by people who came with visas from these countries? The answer was there haven’t been any.
Flentje: These proceedings have been moving quite fast and we’re doing the best we can.
Friedland: You appealed to us before you continued in the district court to develop the record. Why should we be hearing this now if it sounds like you’re trying to say you’re going to present other evidence later?
Flentje: … There have been a number of people from Somalia. …
Friedland: Is that in the record?
Flentje: It is not in the record. You’re right it is not in the record. The reason we sought immediate relief and stay is that the district court’s decision overrides the president’s national security judgment about the level of risk. And we are talking about the level of risk that is acceptable. As soon as we are having that discussion, it should be acknowledged that the president is the official that is charged with making those judgments.
Is the DOJ then arguing that the courts can’t question the government’s motives for this order? Yes!
Friedland: So, are you arguing then that the president’s decision in that regard is unreviewable?
Flentje: Yes. There are obviously constitutional limitations, but we’re discussing the risk assessment.
Friedland: What are the constitutional limitations that the government acknowledges?
Flentje: I would more say that the plaintiffs have asserted various constitutional limitations. …
Flentje: Our point would be there’s limited review and the executive order really passes that test.
Friedland: What kind of limited review do you acknowledge is appropriate?
Flentje: Again, we’re not acknowledging any review on the facts of this case because of standing and other problems. ….
Would it be constitutional for the president to ban Muslims outright if he wanted to? ¯\_(ツ)_/¯.
Canby: Could the president simply say in the order, ‘we’re not going to let any Muslims in?’
Flentje: That’s not what the order does here.
Canby: I know. Could he do that? Could he do that? Would anybody be able to challenge that?
Flentje: That’s not what the order does here.
Canby: I know that.
Flentje: I’d like to get to one key point.
Clifton: Well, we’d like to get to an answer to that question because it speaks back to the standing issue. If the order said, ‘Muslims cannot be admitted,’ would anybody have standing to challenge that?
Flentje: I think Mandel and Din give a route to make a constitutional challenge if there were such an order. It would be by a U.S. citizen with a connection to someone seeking entry. This is a far cry from that situation.
Wait a minute, what? Are you saying that a Muslim ban might be constitutional? OK, maybe not.
Friedland: I don’t think that you answered the question that was asked earlier about ‘what if the order said no Muslims?’ You’ve been analogizing to cases that were about people who were communists who advocated overthrow of the U.S. government. And are you saying that the external evidence here that is alleged that the intent here was to ban Muslims, is equivalent to that?
Flentje: If there were an executive order that prevented the entry of Muslims that—there would be people with standing to challenge that and I think that would raise establishment clause, First Amendment issues. But that’s not the order we have here. This order is limited to the countries defined by Congress.
OK, but the plaintiffs are alleging that’s the actual motive? Can we look at that? Not with the injunction blocking the order in place.
Friedland: [The allegation is] that [religious animus] was the motivation, and plaintiffs have submitted evidence that they suggest shows that that was the motivation. So why shouldn’t the case proceed, perhaps to discovery, to see if that really was the motivation or not?
Flentje: We’re not saying the case shouldn’t proceed, but it is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles and that what has happened here. That is a very troubling second guessing of the national security decision made by the president….
So are you saying the president didn’t say the things he said about his “Muslim ban” motivations? No, just that it doesn’t matter because those were campaign statements.
Clifton: Do you deny that in fact that the statements attributed to then candidate Trump and to his political advisers, and most recently Mr. Giuliani, do you deny that those statements were made?
Flentje: Judge, Clifton, no. I would note that [the lower court judge who blocked the executive order] said himself that he wasn’t going to look at campaign statements.
Clifton: Do you deny that in fact that the statements attributed to then candidate Trump and to his political advisers, and most recently Mr. Giuliani, do you deny that those statements were made?
Flentje: Judge, Clifton, no. I would note that Judge Robart himself said that he wasn’t going to look at campaign statements
Clifton: That’s a different point. I understand the argument they shouldn’t be given much weight, but when you say we shouldn’t be looking at newspaper articles, we’re all on the fast track here. Both sides have told us it’s moving too fast. Either those kinds of statements were made or they were not. If they were made, but they were made not to be a serious policy principle, then I can understand that. But if they were made, it is potential evidence, it is the basis for an argument. So I just want to know what’s on the table.
Again, can you tell us anything you might offer to prove this wasn’t about religious animus, but rather national security interest? Not at the moment, no.
Friedland: If we thought there was a problem that this was too preliminary, if we let this go forward to preliminary injunction hearing, do you have evidence that you would present?
Flentje: I think definitely would like the opportunity to present evidence back in the district court.
Friedland: Can you tell us anything about the type of evidence that you would present so that we could consider whether further proceedings are needed?
Flentje: Not yet.
Does the chaotic implementation of this order—and the fact that, as the state of Washington points out, the administration’s determination of who was covered by it has changed several times—provide any clean way for the order to be reimplemented going forward? Sure, why not.
Clifton: If I could ask my colleagues to indulge me for a moment, that does raise a serious concern on my part. And the scope of the order, most obviously having to do with the lawful permanent residents, which the government’s position now is that they’re not included within the scope of the order. I have to say, is there any legal authority for the counsel to the president to have power to instruct the other departments or to instruct us to as to what the order means? I mean the president can ammend the order, but I’m not sure that the counsel to the president has that authority. So why is it that we should be looking at this reconceived order and why is it we should rather than try narrowly carve out the injunction you’re asking for—those are practical problems, I don’t know how I’d write such order? Why shouldn’t we look to the executive branch to more clearly define what the order means, rather than have to look through the lens of these subsequent interpretations?
Flentje: The guidance from the White House counsel is the definitive interpretation of the order and the White House counsel speaks for the president in this context. …
We suggest, [you should carve out the following injunction if you’re going to do anything]: At most, the injunction should be limited to the class of individuals on whom the state’s claim rests. Previously admitted aliens, who are temporarily abroad now or who wish to travel and return to the United States in the future. That is the core of the harm they’ve identified.
Again, Purcell had his cagey moments as well, particularly under questioning from Clifton as to whether or not this order was tailored narrowly enough—and potentially in the national security interest—so as to not be considered a Muslim ban.
But if you look at the questions relating to the disastrous, completely ad hoc implementation of the order and the president’s previous statements about his possible motivation for the order—statements that clearly point to his desire for a “Muslim ban”—then Tuesday did not appear to be a good day for the Trump administration in court.
