Wall Street Journal
By Devlin Barrett, Brent Kendall and Aruna Viswanatha
February 8, 2017
An appeals court pressed a Justice Department lawyer Tuesday on whether President Donald Trump’s executive order on immigration is discriminatory, while also pushing an attorney for the two states fighting the order to explain how it could be unconstitutional to bar entry of people from terror-prone countries.
August Flentje, the Justice Department lawyer arguing on behalf of the administration, urged the appeals court to remove a lower-court injunction on the order, arguing that the court shouldn’t second-guess the president’s judgment when it came to a question of national security.
The executive order, Mr. Flentje told a three-judge panel of the San Francisco-based Ninth U.S. Circuit Court of Appeals, struck a balance between security concerns and the practice of allowing people to enter the country.
“The president struck that balance, and the district court’s order has upset that balance,” he said. “This is a traditional national security judgment that is assigned to the political branches and the president and the court’s order immediately altered that.’’
The oral arguments on whether to reinstate some, all, or none of President Donald Trump’s executive order on immigration represented a crucial test in the fast-moving legal battle over White House efforts to restrict entry into the U.S. The Jan. 27 order suspended U.S. entry for visitors from seven predominantly Muslim countries for at least 90 days, froze the entire U.S. refugee program for four months and indefinitely banned refugees from Syria. The administration argues the action was needed to keep terrorists from domestic soil.
The president weighed in on Twitter on Wednesday morning: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”
The appeal challenges the broad restraining order issued late last week by a Seattle judge who temporarily halted enforcement of the president’s order, after the states of Washington and Minnesota sued. The Ninth Circuit Court earlier Tuesday said it would likely issue a ruling later this week.
The legal clash, which is also playing out in other courts around the country, represents a remarkable test of the powers of a new president determined to act quickly and aggressively to follow up on his campaign promises. Mr. Trump, who promised repeatedly on the campaign trail to tighten what he called lax immigration policies, issued his executive order a week after taking office, generating widespread protests as well as plaudits and setting off an immediate debate over the extent of executive branch authority.
The judges pressed Mr. Flentje to explain why the executive order shouldn’t be considered a violation of constitutional protections against religious discrimination. During the campaign, Mr. Trump called for a temporary shutdown of Muslim entry into the U.S., though the White House says the current executive order is in no way a Muslim ban.
“Could the president simply say in the order we’re not going to let any Muslims in?’’ asked Judge William Canby.
“That’s not what the order does,’’ Mr. Flentje replied. “This is a far cry from that situation.’’
The judges also asked Mr. Flentje for any evidence that the countries cited in the executive order were connected to terrorism. He responded that a previous Congress and former President Barack Obama had found that they were.
At one point, Mr. Flentje, conceding that “I’m not sure I’m convincing the court,” asked that if the judges didn’t overturn the lower court ruling completely, at least they could rule that it went too far.
Noah Purcell, the attorney for Washington state, argued that there was clear evidence of religious discriminatory intent behind Mr. Trump’s order. “There are statements that…are rather shocking evidence of intent to harm Muslims,” Mr. Purcell told the court.
The court isn’t making a final determination on the legality of Mr. Trump’s order for now. Instead, it must decide what immigration rules will be in effect during the coming months while court proceedings on the substance of the president’s restrictions continue.
Another judge on the panel, Richard Clifton, voiced skepticism about claims that the executive order was discriminatory.
“I have trouble understanding why we’re supposed to infer religious animus,’’ said Judge Clifton. “The concern for terrorism with those connected to radical Islamic sects is kind of hard to deny.’’
Mr. Purcell answered that the president’s own statements and those of some of his advisers indicated the executive order grew out of a desire to keep Muslims out of the country.
“At this point it’s now the federal government that’s asking the courts to upset the status quo,’’ Mr. Purcell said. “Things are slowly returning to normal before the chaos of the executive order.’’
Mr. Purcell also found himself defending the states’ standing to bring the case in the first place. Pressed on whether states have the right to bring lawsuits on behalf of their citizens, he said legal precedents have established that they do.
At times, the judges appeared to consider whether the order could be scaled back so that it didn’t affect those who had already lived in the U.S. and wanted to return. Mr. Purcell argued that it would be a very difficult and complicated task trying to draw broad new rules and restrictions among foreign students, workers and their relatives.
Mr. Trump has vigorously defended the executive order and criticized in unusually blunt terms the Seattle judge, U.S. District Judge James Robart, who put the executive order on hold nationwide while courts sort out its legality. On Sunday Mr. Trump said the judiciary should be blamed if there is a terrorist attack.
Washington and Minnesota are making a variety of legal claims in their case, including that the executive order is discriminatory and that it violates constitutional guarantees of due process and equal protection under the law.
The states also have said the president’s order has harmed thousands of noncitizen residents of their states, and that individuals traveling abroad were unable to return, including faculty and students from state universities. They also said the restrictions cost them tax revenue and created travel impediments for businesses based within their borders.
Several variables could affect the Ninth Circuit’s deliberations. The states say the appeals court has no jurisdiction to consider the restraining order because of its temporary nature; the Justice Department says the states have no legal standing to bring a lawsuit on behalf of their residents against the federal government.
The appeals court may have the option to choose a middle ground, and isn't limited to an all-or-nothing pronouncement on whether the Trump order can be enforced in the coming months. For example, the judges could find that the lower court’s ruling suspending Mr. Trump’s order was appropriate in some ways but overly broad in others.
The Justice Department indirectly floated a potential compromise in its legal papers, arguing that at a minimum the executive order must be enforced against aliens who have never set foot in the country or have no specific connections to Washington or Minnesota.
If the Ninth Circuit appeals court rules broadly in favor of Washington and Minnesota after Tuesday’s hearing, the executive order would continue to be suspended nationwide.
It is likely that the losing party will ask the Supreme Court to intervene on an emergency basis. Any such request, however, could be complicated by the fact that the current court is evenly divided between four liberal justices and four conservatives. A 4-4 deadlock would leave the Ninth Circuit’s decision intact.
Despite the flurry of litigation, the courts are far from issuing a final ruling on the underlying merits of the president’s executive order. Full court proceedings are expected to take many months, and a lengthy appeals process could mean it is well over a year before courts fully resolve the legality of Mr. Trump’s approach. It is likely that the final word on the matter will come from the Supreme Court.
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