Appeals court grills DOJ, opponents over Trump's immigration order

The appellate court on Tuesday promised swift consideration of the case and a ruling this week.

By Doug G. Ware
Appeals court grills DOJ, opponents over Trump's immigration order
A protester holds a sign in front of the Ninth Circuit Court of Appeals in San Francisco on Tuesday afternoon. The court's three-judge panel heard arguments Tuesday from a Justice Department attorney and a lawyer for the opponents of President Donald Trump's executive action temporarily barring U.S. entry for foreign migrants and refugees. Photo by Terry Schmitt/UPI | License Photo

Feb. 7 (UPI) -- A San Francisco-based federal appellate court on Tuesday listened to arguments from -- and had plenty of questions for -- attorneys on each side of President Donald Trump's frozen immigration and refugee order.

The Ninth Circuit Court of Appeals heard the case Tuesday afternoon via telephone -- as none of its three judges were present at the downtown San Francisco courthouse.


In addition to presenting their arguments, an attorney for the U.S. Justice Department and one representing two states challenging the president's order were rigorously questioned by the panel about why Trump's executive action should, or should not be, allowed to stand.

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Under Trump's executive order, refugees from Syria are denied U.S. entry indefinitely, refugees from all other countries are suspended for 120 days, and immigrants from Iran, Iraq, Somalia, Sudan, Libya, Syria and Yemen are barred for 90 days. The suspensions are intended to give Trump's administration time to make threat assessments for a permanent migrant and refugee policy.

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Trump signed the order Jan. 27 but it was almost immediately challenged in federal court. A restraining order blocked the ban two days after it was signed, and a Boston court refused to extend it last Friday. A short time later, however, an appeals court in Seattle issued a new injunction, which led to this week's proceedings in San Francisco's Ninth Circuit Court.

Justice Department attorney August E. Flentje made Trump's case first at Tuesday's hearing, arguing that the president was well within his broad legal authority granted by Congress and the U.S. Constitution to take whatever actions are necessary to safeguard the national interest -- and that such executive determinations should be "unreviewable."

Flentje told the judges that Trump has determined that a real threat exists in allowing immigrants from the aforementioned Muslim-majority countries to enter the United States. He also said former President Barack Obama's administration had even considered those nations suspect in terror matters.

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That argument, though, was questioned by the court, which asked if the Justice Department could produce any solid evidence that travelers from those nations would truly pose a risk of terrorism. Flentje said there is no such proof on record.


"It's pretty abstract," one judge said.

The court also refuted the government's argument that the plaintiffs in the case, the states of Washington and Minnesota, cannot legally challenge the president's order with their lawsuit.

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"Sure they can," Judge Richard R. Clifton said by phone from Honolulu.

A half-hour into the hearing, the judges also peppered Washington Solicitor General Noah Purcell with questions about the challengers' allegations.

Purcell argued that Trump's administration has made a procedural error by attempting to appeal a temporary restraining order -- prompting one judge to ask, "why should we care?" Moments later, he challenged the merits of Trump's order -- saying it stands to cause irreparable harm for U.S. states economically, and for the migrants and refugees themselves.

During his argument, the court pressed Purcell to explain how Trump's order amounts to the plaintiffs' accusation of religious discrimination -- since it would only impact a "small percentage of Muslims."

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Purcell responded by mentioning the widely publicized comments from then-presidential candidate Trump in 2015, which suggested all Muslims should be banned from entering the United States.


"There are statements that are rather shocking evidence of intent to discriminate against Muslims," Purcell said. "The public statement from the president and his top advisers."

Before the hearing ended, Flentje was given a chance to address those remarks -- and answered simply, "no," when asked if he denies that Trump ever made such statements.

"It is extraordinary to enjoin the president's national security determination based on some newspaper articles, and that's what has happened here," Flentje added.

The court promised to give the case quick consideration and issue a ruling as soon as possible, probably sometime this week.

Clifton was appointed to the court bench by former President George W. Bush. Judge Michelle T. Friedland, who listened by phone from San Jose Tuesday, was appointed by Obama.

Judge William C. Canby, Jr., appointed decades ago by former President Jimmy Carter, could be the deciding vote -- as Clifton seemed to side with the defendants and Friedland with the plaintiffs, The Hill reported. He heard Tuesday's arguments from Arizona.

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