Appeals court hammers on government arguments for travel ban
SAN FRANCISCO >> President Donald Trump’s travel ban faced its toughest test yet today as a panel of appeals court judges hammered away at the government’s arguments that the ban was motivated by terrorism fears but also directed pointed questions to an attorney who claimed it unconstitutionally targeted Muslims.
The contentious hearing before three judges on the San Francisco-based 9th Circuit Court of Appeals focused narrowly on whether a restraining order issued by a lower court should remain in effect while a challenge to the ban proceeds. But the judges also jumped into the larger constitutional questions surrounding Trump’s order, which temporarily suspended the nation’s refugee program and immigration from seven mostly Muslim countries that have raised terrorism concerns.
The hearing was conducted by phone — an unusual step — and broadcast live from the court’s website to a record audience.
Judge Richard Clifton, a George W. Bush nominee, asked an attorney representing Washington state and Minnesota, which are challenging the ban, what evidence he had that the ban was motivated by religion.
“I have trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected.”
Only 15 percent of the world’s Muslims were affected, the judge said, citing his own calculations. He added that the “concern for terrorism from those connected to radical Islamic sects is hard to deny.”
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Noah Purcell, Washington state’s solicitor general, cited public statements by Trump calling for a ban on the entry of Muslims to the U.S. He said the states did not have to show every Muslim is harmed, only that the ban was motivated by religious discrimination.
Clifton also went after the government’s attorney, asking whether he denied statements by Trump and former New York City Mayor Rudolph Giuliani, who said recently that Trump asked him to create a plan for a Muslim ban.
“We’re not saying the case shouldn’t proceed, but we are saying that it is extraordinary for a court to enjoin the president’s national security decision based on some newspaper articles,” said August Flentje, who argued the case for the Justice Department.
Under questioning from Clifton, Flentje did not dispute that Trump and Giuliani made the statements.
Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked whether the government has any evidence connecting the seven nations to terrorism.
Flentje told the judges that the case was moving fast and the government had not yet included evidence to support the ban. Flentje cited a number of Somalis in the U.S. who, he said, had been connected to the al-Shabab terrorist group.
The ban has upended travel to the U.S. for more than a week and tested the new administration’s use of executive power.
The live broadcast of the oral arguments on the court’s YouTube site had 137,000 connections — by far the largest audience for an oral argument since the 9th Circuit began live streaming about two years ago, said David Madden, a spokesman for the court. Some news outlets also carried the live stream.
Whatever the court eventually decides, either side could ask the Supreme Court to intervene.
The government asked the appeals court to restore Trump’s order, saying that the president alone has the power to decide who can enter or stay in the United States. Several states insist that it is unconstitutional.
The judges repeatedly questioned Flentje on why the states should not be able to sue on behalf of their residents or on behalf of their universities, which have complained about students and faculty getting stranded overseas.
Purcell said that restraining order has not harmed the U.S. government. Instead, he told the panel, Trump’s order had harmed Washington state residents by splitting up families, holding up students trying to travel for their studies and preventing people from visiting family abroad.
A decision by the 9th Circuit was likely to come later this week, Madden said.
Trump said Tuesday that he cannot believe his administration has to fight in the courts to uphold his ban, a policy he says will protect the country.
“And a lot of people agree with us, believe me,” Trump said at a round table discussion with members of the National Sheriff’s Association. “If those people ever protested, you’d see a real protest. But they want to see our borders secure and our country secure.”
Homeland Security Secretary John Kelly told lawmakers that the order probably should have been delayed at least long enough to brief Congress about it.
If the case does end up before the Supreme Court, it could prove difficult to find the necessary five votes to undo a lower court order. The Supreme Court has been at less than full strength since Justice Antonin Scalia’s death a year ago. The last immigration case that reached the justices ended in a 4-4 tie.
How and when a case might get to the Supreme Court is unclear. The travel ban itself is to expire in 90 days, meaning it could run its course before a higher court takes up the issue. Or the administration could change it in any number of ways that would keep the issue alive.
10 responses to “Appeals court hammers on government arguments for travel ban”
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My friend Judge Ric Clifton is one of the three judge panel. And, I know he would vote based on the U.S. Constitution.
@ kuroiwaj
You I believe.
Others not so much.
My friend is on the Supreme Court, and she’ll vote liberal no matter what the Constitution says.
Denominator> My friend is GOD and he won’t vote either way. Instead he will create a rapture to destroy all the people who want to complain about what is the constitutional right of the president to protect America’s citizens. All other types of votes and abstentions don’t count. What is written in black and white should prevail, and the “so-called judges” should not try to legislate, but interpret the law as it is written. So be it, AMEN!!!!!
Well said, Hitler!
Also, not too long ago in our past Blacks were not allowed to vote. And that was in black and white clear as day and the prevailing law of the land. That was until those laws were challenged.
the 9th jerkit court of shamels is nothing but liberals with real mental disorders.
9th circuit: getting an early start for the 2017 most reversed circuit court award.
and perhaps not just most reversed, but most unanimously reversed circuit court.
All I have to say is McCarren-Walter act of 1952
Known as the McCarran-Walter Act, the Immigration and Nationality Act of 1952 allows for the “Suspension of entry or imposition of restrictions by the President, whenever the President finds that the entry of aliens or of any class of aliens into the United States would be detrimental to the interests of the United States. The President may, by proclamation, and for such a period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants or impose any restrictions on the entry of aliens he may deem to be appropriate.”
Additionally, it is important to note that the McCarran-Walter Act also requires that an “applicant for immigration must be of good moral character and in agreement with the principles of our Constitution.” Therefore, if it is true that the Quran evidently forbids Muslims to swear allegiance to the U.S. Constitution, then ALL Muslims possibly should be refused immigration to OUR country. (Not to mention that their religion requires them to kill anyone who refuses to convert to Islam, which is why so many Christians have been beheaded, and will be otherwise murdered by Muslims)
Authenticated at: Immigration and Nationality Act of 1952
And this is why President Trump will prevail.
The Democrats should go back to the books and find out what is law and what isn’t.
At one time Blacks were not allowed to vote according to the prevailing laws of the land. Was it right?