WASHINGTON — Three federal judges grilled lawyers from the Justice Department and Washington on Tuesday night as they determine whether to lift a nationwide halt against President Donald Trump’s travel ban against citizens of seven Muslim-majority countries.
The hearing conducted by telephone contained moments of high drama as one of Trump’s signature policies is challenged by two states and numerous advocacy groups.
The Trump administration argued the courts have improperly inserted itself into the national security sphere.
“This is a traditional national security judgment that is assigned to the political branches and the president,” August Flentje, special counsel to the assistant attorney general at the Justice Department, told the panel of judges from the 9th Circuit Court of Appeals.
Flentje faced skeptical questioning from the judges, who pressed the DOJ lawyer about what evidence the government is presenting that the travel ban is necessary.
Judge Michelle T. Friedland out of the gate asked if the government could point to any evidence “connecting these countries with terrorism.”
And Judge Richard R. Clifton seemed sympathetic to the fact the states have the standing, or ability, to bring the suit against the administration.
Clifton called the government’s argument “abstract,” noting there are existing procedures to vet individuals for visas.
Washington Attorney General Noah Purcell, representing his state and Minnesota, which are challenging the Trump executive order, defended the role of the courts.
“It has always been the judicial branch’s role to say what the law is and serve as a check … has never been more important than it is today,” he said.
If the court were to lift the injunction, it would throw the country back into “chaos,” he said.
The Trump administration can’t show that it will suffer irreparable harm if the injunction is allowed to remain in place, while state residents would suffer and state governments have lost tax revenue as a result of the executive order, Purcell said.
But Clifton also was skeptical on the state’s argument on standing, wondering how many people in Washington would be harmed by the executive order.
“I suspect it is a small fraction,” he said.
Clifton also wondered about whether the injunction could be limited to people who were in the United States or would have a connection to the U.S.
All three judges pressed Flentje on whether the president could simply say we’re not going to let in any Muslims.
“Could he do that?” and “Would anyone be able to challenge that?” they asked.
Flentje repeatedly argued, “That’s not the order.”
But Clifton continued to press, saying, “We’d like to get to an answer of that question.”
Eventually, Flentje capitulated and said a U.S. citizen with a connection to someone seeking entry might be able to challenge.
Later, Purcell was challenged by the panel when it was raised that only a relatively small percentage of Muslims hail from the seven banned countries, leading to the question of how can he show the executive order shows an intent to discriminate against Muslims when it doesn’t even target the majority of Muslims.
“You don’t have to prove it harms every Muslim — you just need to show the action was motivated in part by animus,” Purcell said.
“There’s rather shocking evidence of intent to discriminate (in this case),” he added, eluding to statements from Trump as well as an apparent comment by former New York Mayor Rudy Giuliani, who was not referred to by name.
“I don’t think allegations cut it at this stage,” Clifton shot back.
Judge James Robart of the U.S. District Court for the Western District of Washington suspended key parts of the executive order nationwide Friday, clearing the way for resumed travel from the seven countries.
The executive order bars citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the U.S. for 90 days, all refugees for 120 days and indefinitely halts refugees from Syria.