The motivations behind President Trump’s executive order temporarily halting travel from seven countries came under scrutiny before a three-judge panel of the 9th Circuit Court of Appeals on Tuesday, as an attorney challenging the order said that there was “shocking” evidence in the form of Trump’s own public statements proposing to ban Muslim entry into the U.S.
The question before the appellate court is whether to reverse a lower-court’s grant of a temporary restraining order last week that sidelined the implementation of Trump’s travel ban, which prohibits citizens of Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen from entering the United States for 90 days. The one-hour hearing was not to weigh the merits of the case, and marked what may be just the beginning stages of a protracted legal battle.
Audio of the arguments was streamed and aired live on cable news. The case has drawn the interest of dozens of tech companies, which filed friend-of-the-court briefs opposing Trump’s executive order and supporting a challenge to it brought by the states of Washington and Minnesota.
Noah Purcell, the attorney for Washington state, said that Trump’s action, if reinstated, would prevent university students and faculty from entering the country, and that it would separate families and cost the state tax revenue.
He and representatives from other states are raising constitutional questions over the order, as the seven states included in the ban are all Muslim majority countries. They also have cited Trump’s own statements on proposing a Muslim ban, as well as those of supporters like former New York Mayor Rudy Giuliani.
But Judge Richard Clifton noted that the seven countries included in the order represented less than 15% of the Muslim population. In other words, if it was an effort to ban Muslims, why not include other countries?
He noted that presidential orders in the past have limited travel from specific countries like Cuba and North Korea.
“All of those orders have been narrower than here,” Purcell responded. He said that to prove religious discrimination they did not need to show that it only affected Muslims.
August Flentje, representing the federal government, said that Judge James Robart’s temporary restraining order was an “extraordinary” action in that it enjoined a presidential national security decision “based on some newspaper articles.”
But the judges queried him on the urgency of Trump’s executive order. Judge William Canby asked how many offenses had been committed by visitors from the seven countries — and then, answering himself, he noted that there were none.
But Flentje pointed to “a number of people from Somalia connected to Al Shabab.” He acknowledged that those instances were not in the court record.
Judge Michelle T. Friedland also seemed to challenge Flentje on the role of the judiciary in reviewing presidential orders on immigration. “Are you arguing that the president’s decision in that regard is unreviewable?” Flentje answered yes.
A ruling is expected this week.