Will court compound travel ban whiplash or calm it? - CBS News 8 - San Diego, CA News Station - KFMB Channel 8

Will court compound travel ban whiplash or calm it?

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A woman crosses the street outside of the 9th U.S. Circuit Court of Appeals in San Francisco (AP Photo/Jeff Chiu) A woman crosses the street outside of the 9th U.S. Circuit Court of Appeals in San Francisco (AP Photo/Jeff Chiu)

SEATTLE (AP) — President Donald Trump's travel ban and a judge's stunning decision to temporarily block it a week later have left the nation with whiplash, shifting attention from protests at airports nationwide to Trump questioning the judge's legitimacy on social media.

The 9th U.S. Circuit Court of Appeals will now decide whether the executive order immediately gets reinstated, after three judges heard arguments Tuesday .

If they let the president go forward with the ban, it could compound the whiplash: The order suspending the nation's refugee program and immigration from seven mostly Muslim countries would take effect once again.

But the courts could still strike it down later amid a legal challenge by Washington state and Minnesota.

A decision has been promised within days.



Trying to divine how a court might rule from the questioning can be a fool's errand, but some legal scholars who were willing to try anyway said Washington state appeared to make enough of a case to keep Trump's travel ban on ice, at least for now.

Tuesday's arguments between Justice Department attorney August Flentje and Washington state Solicitor General Noah Purcell were conducted by phone, due to the emergent nature of the hastily arranged hearing. The record audience that tuned in for the live-stream on the court's website heard each lawyer getting grilled.

The judges repeatedly asked Flentje whether the government had any evidence that the travel ban was necessary, or that keeping it on hold would harm national security. They expressed skepticism over his argument that the states don't have standing to sue, and over his assertion that the courts have little to no role in reviewing the president's determinations concerning national security.

Purcell faced tough questioning from Judge Richard Clifton, who said he wasn't necessarily buying the states' argument that the ban was motivated by religious discrimination, given that the vast majority of Muslims live in countries that aren't targeted by the ban.

"I certainly thought the government's case came across as weaker," Stephen Vladeck, a professor at the University of Texas School of Law, wrote in an email, citing "the government's seeming inability to provide concrete evidence of why immigration from those countries threatens national security."



After being repeatedly asked, Flentje acknowledged that individuals could have standing to sue if the president tried to enforce an all-out ban on Muslims entering the U.S. But, he said, that's not all what's happening here. Basing the order on travel from certain countries that have been linked to terrorism — whatever their religion — is a perfectly legitimate exercise of the president's authority over national security, he argued.

Purcell argued that it's remarkable to have this much evidence of discriminatory intent this early in the case — including Trump's campaign statements about a Muslim ban and adviser Rudy Giuliani's interview comments that he was asked to help devise a legal version of the Muslim ban.

"There are statements that we've quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims, given that we haven't even had any discovery yet to find out what else might have been said in private," Purcell said.

Even if Trump's executive order itself doesn't single out Muslims, the order is unconstitutionally discriminatory if it was adopted with such intent, Purcell said.

Judge Michelle Friedland asked Flentje persistent questions about such evidence.

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

That drew an incredulous response from Clifton: "Do you deny those statements were made?" Flentje conceded they were, and Clifton said in that case it was appropriate to consider them.



Purcell argued that for procedural reasons, the simplest course for the court is to send the case back to Robart for more proceedings, and to take up the merits of the case only after Robart has issued a further ruling.

In addition to simply leaving Robart's temporary restraining order in place or striking it down, the DOJ said the appeals court could narrow its scope, which it called over-broad.

Flentje suggested it could be limited to allow the president to ban travelers who don't already have relationships with the United States, while allowing legal permanent residents, for example, to return to the U.S. from the seven countries. In questioning Purcell, Clifton followed up on that.

"Why shouldn't we limit the order, the temporary restraining order's reach to those people who you've got a strong case for, like the LPRs?" he asked.

Purcell said that wouldn't work. The government hasn't shown that it could engineer a way to apply the ban so selectively, and even if it could, the rights of U.S. citizens who want to have family members come visit them from the listed countries would still be harmed, he said.

Judge William Canby noted that Washington's state universities might want to invite some foreign scholars to visit — and that those scholars might have no current connection to the U.S. In that case, the rights of the schools might be compromised.

Further, the travel ban would still violate the separation of church and state, because it's grounded in religious discrimination, and that's something that affects all residents of the states, Purcell said.



There's a good chance, but how and when is unclear. The travel ban was set to expire in 90 days, meaning it could run its course before the court takes up the issue. But the administration could change it in any number of ways, including expanding its scope and duration, that would keep the issue alive.

The Supreme Court has a vacancy, leaving it with just eight justices, raising the chance of a split outcome. In that case, whatever the 9th Circuit decides would stand.

The Trump administration is pushing to fill the vacancy with a new nominee, appeals court Judge Neil Gorsuch. If he's confirmed in the coming weeks, that would erase chances for a tie vote.

As part of the confirmation process, Senate Democrats are likely to question Gorsuch about his views on presidential power, both in light of the Trump order and Gorsuch's writings expressing skepticism about some aspects of executive authority.


Associated Press writer Brian Melley in Los Angeles and Mark Sherman in Washington contributed to this story.

Copyright 2017 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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