9th Circuit, 3-judge panel appears ready to rule against Trump on ban as DOJ lawyer struggled

dcnf-2-1Kevin Daley, DCNF

The 9th U.S. Circuit Court of Appeals appeared skeptical that it should grant the government’s motion to overturn U.S. District Judge James Robart’s ruling temporarily barring enforcement of President Donald Trump’s executive order on refugees.


Robart’s Jan. 27 order suspended enforcement of provisions of the order which preclude refugee admissions and block travel to the U.S. from seven countries with high instances of terrorism.

The argument was live-streamed by the 9th Circuit, drawing an unprecedented internet audience of nearly 150,000 listeners. The proceedings were also broadcast on CNN and MSNBC, making the hearing a historic event in the history of federal appellate courts. The hearing was held by phone given the time constraints attending such hurried proceedings. A recording of the argument is available at this link.

Judge Michelle Friedland presided over the hearing, with Judges Richard Clifton and William Canby. Friedland is an Obama-era appointee, Clifton is a George W. Bush appointee, and Canby is a Carter appointee.

At this stage of the litigation, the court is not reviewing the order on the merits. Rather, they are deciding whether Robart’s temporary restraining order (TRO) will remain in effect as the courts assess the lawfulness of Trump’s directive.

The government was represented by August Flentje, a career lawyer at the U.S. Department of Justice. The question of risked loomed large over the administration’s argument. In order to prevail in the hearing, the government was required to show it would suffer serious harm if Robart’s order was not overturned. Flentje argued that, absent the order, the U.S. was at risk of terrorist attack. Friedland and Clifton appeared skeptical of that position, asserting the risk was too abstract.

Flentje went on to argue that the courts ought to defer to the president’s national security determinations, leading Friedland to ask if the courts could scrutinize such findings.

“Are you arguing than that the president’s decision on that regard is unreviewable?” Friedland asked.

“Yes,” Flentje replied. “There are obviously constitutional limitations but we are discussing the risk assessment,” he quickly added. The panel seemed especially dubious on this point.

“I’m not sure I am convincing the court,” he said at one point, in a remarkable concession.

Washington state solicitor general Noah Purcell, leading a group of states challenging the order, endured equally rigorous questioning.

Clifton suggested that the Trump administration was justified in suspending travel from the seven countries named in the order, given previous federal designations had limited migration from those same areas. He also seemed skeptical of the contention that the order discriminates against those who practice Islam.

“I have trouble with why we’re supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected,” he said, pointing out that, by his rough calculations, only 15 percent of the world’s Muslims were subject to the order.

Purcell struggled against this argument. Nonetheless, by the hearing’s conclusion, it seemed evident the government would lose, setting up a high stakes appeal to the Supreme Court.

During Tuesday’s press briefing at the White House, press secretary Sean Spicer expressed confidence that the government would prevail, though declined to say whether the Department of Justice would appeal to the high court.

A ruling is not expected until later this week.

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