A government lawyer defending President Donald Trump’s temporary entry ban on people from seven Muslim-majority countries came under intense scrutiny on Tuesday from a US federal appeals court that questioned whether it unfairly targeted people over their religion. The three-judge 9th US Circuit Court of Appeals panel asked the Trump administration’s lawyer tough questions about whether the administration had provided any evidence that people from the seven countries were a danger. Judge Richard Clifton, a George W Bush appointee, posed equally tough questions for an attorney representing Minnesota and Washington states, which are challenging the ban. Clifton asked if a Seattle judge’s suspension of Trump’s policy was “overbroad.”
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The 9th Circuit said at the end of the session that it would issue a ruling as soon as possible. Earlier on Tuesday, the court said it would likely rule this week but would not issue a same-day ruling. The matter is ultimately likely to go to the US Supreme Court.
Trump’s January 27 order barred travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering for 90 days and all refugees for 120 days, except rfugees from Syria, whom he would ban indefinitely. Trump, who took office on January 20, has defended the measure, the most divisive act of his young presidency, as necessary for national security.
The order sparked protests and chaos at US and overseas airports in the weekend that followed. A federal judge in Seattle, responding to the legal challenge, suspended the order last Friday. August Flentje, special counsel for the US Justice Department, told the appellate panel that “Congress has expressly authorized the president to suspend entry of categories of aliens.”
“That’s what the president did here,” Flentje said at the start of a more than hour-long oral argument conducted by telephone and broadcast live online.
Individuals, states and civil rights groups challenging the ban said Trump’s administration had offered no evidence it answered a threat. Opponents also assailed the ban as discriminatory against Muslims in violation of the US Constitution and applicable laws. The states of Minnesota and Washington brought the case against the Trump administration.
When the 9th Circuit asked Flentje what evidence the executive order had used to connect the seven countries affected by the order with terrorism in the United States, Flentje said the “proceedings have been moving very fast,” without giving specific examples. He said both Congress and the previous administration of Democrat Barack Obama had determined that those seven countries posed the greatest risk of terrorism and had in the past put stricter visa requirements on them.
“I’m not sure I’m convincing the court,” Flentje said at one point. Noah Purcell, solicitor general for the state of Washington, began his argument urging the court to serve “as a check on executive abuses.”
“The president is asking this court to abdicate that role here,” Purcell said. “The court should decline that invitation.” The judges pummeled both sides with questions. Clifton pushed for evidence that the ban discriminated against Muslims and said he was hearing more allegations than evidence. “I don’t think allegations cut it at this stage,” Clifton said.
Trump frequently promised during his 2016 election campaign to curb illegal immigration, especially from Mexico, and to crack down on Islamist violence. His travel ban sparked protests and chaos at US and overseas airports.
National security veterans, major US technology companies and law enforcement officials from more than a dozen states backed a legal effort against the ban. “I actually can’t believe that we’re having to fight to protect the security, in a court system, to protect the security of our nation,” Trump said at an event with sheriffs at the White House on Tuesday.
Although the legal fight over Trump’s ban is ultimately about how much power a president has to decide who cannot enter the United States, the appeals court is only looking at the narrower question of whether the Seattle court had the grounds to halt Trump’s order.
“To be clear, all that’s at issue tonight in the hearing is an interim decision on whether the president’s order is enforced or not, until the case is heard on the actual merits of the order,” White House spokesman Sean Spicer said.