A federal appeals court panel reviewing President Trump’s controversial limits on travel from several predominantly Muslim countries appeared skeptical Tuesday of the administration’s arguments seeking to reinstate his order.
In a hearing that lasted more than an hour, a three-judge panel of the U.S. 9th Circuit Court of Appeals appeared to dismiss the administration’s arguments that neither the states nor the courts have the authority to challenge the executive order, which seeks to bar travelers from seven countries in the Middle East and North Africa to protect the United States from terrorists.
The fight over the travel moratorium is being viewed as a test of whether the new and unconventional president, who has never before held public office, will be reined in by the courts as he tries to implement his controversial campaign promises.
Trump’s executive order suspending the admission of new refugees and blocking travelers from countries with possible links to terrorism prompted protests around the world and threw airports into chaos as at least 60,000 foreigners with valid visas saw them suddenly canceled.
A federal judge in Seattle last week issued a temporary restraining order blocking enforcement of the ban, and those potentially affected by it — students who had been overseas visiting their families, engineers on work visas, relatives hoping to visit their families in the U.S. — began streaming into the country again.
A ruling in favor of the government by the three-member panel could reverse the situation once again. Administration lawyers said such a ruling was essential until the government can draft adequate protections to keep possible terrorists out of the country.
Tuesday’s hearing on the government’s bid to reinstate it drew an extraordinary level of public attention.
The audio feed was broadcast live on CNN and MSNBC — highly unusual for a legal teleconference. Nearly 137,000 people listened in on the court’s website, the largest audience “by far” of any hearing since the 9th Circuit began streaming two years ago, a court spokesman said.
The states of Washington and Minnesota have challenged the constitutionality of Trump’s executive order, arguing that it was motivated by a negative attitude toward Muslims, not a reasoned attempt to protect the country. They said it would prevent students from finishing their education and leave employers suddenly without needed workers.
The Justice Department counters that the moratorium was not aimed at any particular religion, but at nations associated with terrorism, and is intended to apply only until new vetting measures are in place. Federal attorneys contend that the potential harm cited by the states — business loss, reduced tax revenue and disruption of higher education — are merely speculative.
Appeals court arguments are often hard to judge; lawyers for both sides came in for pointed questioning.
But two of the three 9th Circuit judges hearing the case said little to indicate they would rule for Trump.
On the other hand, Judge Richard Clifton, an appointee of President George W. Bush, directed his toughest questions to Washington state Solicitor Gen. Noah G. Purcell, who represented his state and Minnesota during the hearing.
Clifton repeatedly noted that the moratorium on entry from the seven targeted nations affected only 15% of the world’s Muslim population. He asked how that amounted to discrimination against Muslims.
“I have trouble understanding where we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected,” he said.
Clifton also asked whether the administration should be prohibited, under the judge’s order, from applying a ban to people in those seven countries who have never been to the U.S. or held visas.
“Why isn’t this over-broad?” Clifton asked, referring to U.S. District Judge James Robart’s temporary restraining order.
The panel seemed to agree, however, that the states had the legal right to challenge Trump’s order.
And both Judge William Canby, an appointee of President Carter, and Judge Michelle Friedland, a President Obama appointee, appeared to come to the aid of the states’ lawyer when Clifton pressed him for evidence that the travel order was motivated by religious bias.
“You have actually supported these allegations with exhibits, haven’t you?” Friedland reminded the lawyer representing Washington and Minnesota.
Canby quickly added that it was the federal government, not the states, that had the burden of showing its arguments would eventually prevail.
August Flentje, special counsel to the assistant U.S. attorney general, argued that Trump’s order merely put a “temporary pause” on entry from the seven countries until security concerns could be reviewed.
He said those nations were targeted because Congress and the Obama administration determined they posed special risks of terrorism.
But Clifton said the administration had only “pretty abstract” evidence that irreparable harm would result if the temporary restraining order were not removed.
“It isn’t like there haven’t been processes in place” to provide extra screening of visa applications from those countries, he said.
“Is there any reason for us to think there is a real risk?” Clifton asked.
Friedland asked the federal government’s lawyer how the administration would view an order that said all Muslims were banned.
Flentje tried to deflect the question but eventually conceded that such an directive could be challenged on constitutional grounds.
UC Irvine Law School Dean Erwin Chemerinsky said he was struck by the difficulty the federal lawyer had in providing evidence that removing the hold would cause irreparable harm.
University of Pittsburgh Law Professor Arthur Hellman said he was surprised at the tone of some of some of Clifton’s questions for the Washington state attorney.
“He seemed almost angry,” Hellman said. “But later he was also a little hard on the federal government attorney.”
Legal experts caution against reading too deeply into the tone of questioning from judges, who are often pointed on both sides of a case.
"The reason you can't read a lot into oral arguments is that it's the judges' job to perform a searching inquiry on both sides. I think people who haven't heard oral arguments may hear the questions for the Department of Justice and they say, 'Oh my God, these are such sharp questions, and maybe they don't agree at all with the federal government,'" said Jessica Levinson, a law professor at Loyola Law School in Los Angeles.
What's important to keep in mind, she said, is "it's the judges' job to play devil's advocate. It's their job to help the attorneys articulate their best argument. It's their job to also try to convince their colleagues."
The 9th Circuit is not expected to decide the key constitutional issues in the case immediately. The panel in its ruling this week will determine only whether the court order against enforcement of the ban should continue until the complex legal debate over executive power and due process is resolved.
To reverse Judge Robart’s restraining order, the federal government must show that the country would suffer irreparable harm if the travel ban is not immediately reinstated.
If the appeals court upholds the restraining order, the administration can appeal to the U.S. Supreme Court. Once the legality of the hold is resolved, the case would return to Robart.
8:20 p.m.: This story was updated with additional details from the hearing and for clarity.
5:45 p.m.: The story was updated with details from the oral arguments.
4:25 p.m.: This story was updated to reflect the conclusion of oral arguments.
3:15 p.m.: This story was updated with the commencement of oral arguments in the case.
This story was originally published at 2:05 p.m.