For several consecutive minutes during Washington Solicitor Gen. Noah Purcell's arguments at the U.S. 9th Circuit Court of Appeals, judges repeatedly prodded Purcell on whether President Trump's travel ban amounted to anti-Muslim discrimination.
"The seven countries encompass only a relatively small percentage of Muslims," Judge Richard Clifton, an appointee of President George W. Bush, said at one point.
"I have trouble understanding where we're supposed to infer religious animus," said Clifton.
Judges considering whether to reinstate President Trump's travel ban showed interest in the government’s argument that at most the ban should be limited, rather than blocked entirely.
Government attorneys have argued that the temporary restraining order issued by James L. Robart, a Seattle federal judge, went too far in effectively shutting down implementation of Trump's ban nationwide.
"It is overbroad.... It shouldn’t cover people who have never been to the United States,” said August E. Flentje, the government attorney. He said any restraining order should only apply to foreigners from the 7 countries who currently live in the U.S. and were caught outside the country, or only to those living in Washington state.
In making the case to reinstate President Trump's executive order on immigration, attorneys for the Department of Justice have zeroed in on the chief executive's authority to decide issues of national security.
That power, they argued in court papers, is sacrosanct and should not be challenged, as it was by the judge who issued a sweeping emergency order last week that halted the travel restrictions.
“Judicial second-guessing of the President’s determination,” the lawyers wrote in a brief, “would constitute an impermissible intrusion on the political branches’ plenary constitutional authority over foreign affairs, national security, and immigration.”
A panel of U.S. 9th Circuit Court of Appeals judges pushed back on the notion that the state of Washington should not be allowed to sue on behalf of its resident immigrants to block President Trump's travel ban.
They noted that the Supreme Court recently recognized that a wife could sue on behalf of her husband, an Afghan who was denied a visa to join her in the United States.
"His wife was allowed to sue,” said Judge William Canby, referring to the case Kerry vs. Din.
A lawyer for the Trump administration ran into skeptical questions from a panel of federal judges as the 9th Circuit Court of Appeals began a hearing on the president's travel ban.
"Haven't there been allegations here of bad faith" by President Trump in his decision making, asked Judge Michelle T. Friedland, referring to claims that the executive order restricting travel from seven countries was a thinly disguised way of banning Muslims from the country.
The three-judge 9th Circuit panel is hearing arguments on whether to allow Trump's executive order to go into effect. A district court judge in Seattle has issued a temporary restraining order blocking the government from putting the executive order into effect.
The U.S. 9th Circuit Court of Appeals, where a panel of three judges will hear arguments over whether President Trump's travel ban should be reinstated or kept on hold as a lower court case against it proceeds, said Tuesday a decision on the matter is expected this week.
"A ruling is not expected to come down today, but probably this week," court officials said in a news release.
Two of the judges on the 9th Circuit panel that will hear arguments were appointed by Democratic presidents, Jimmy Carter and Barack Obama, and one was appointed by a Republican, George W. Bush.
The U.S. 9th Circuit Court of Appeals hasreleased the names of the attorneys who will argue for and against President Trump's travel ban Tuesday.
Noah G. Purcell, the Washington state solicitor general, will represent the states of Washington and Minnesota. Those states filed the lawsuit that resulted in a federal district judge's decision in Seattle on Friday to halt Trump's executive order nationwide.
Washington State Atty. Gen. Bob Ferguson said it was Purcell's idea to enlist major tech companies in the state to file briefs supporting the state's challenge of Trump's executive order.