By David Voreacos , Erik Larson , and Jennifer Jacobs
February 8, 2017
President Donald Trump defended his power to put limits on who can enter the U.S., saying it shouldn’t be challenged in the courts even as a three-judge panel weighs whether to reinstate restrictions on refugees and travelers from seven predominately Muslim nations.
Trump appeared before a conference of police chiefs and sheriffs in Washington Wednesday, reading from a U.S. statute giving the president authority to stop the entry of “any class” of foreigner.
"You can suspend, you can put restrictions, you can do whatever you want," Trump told the chiefs, after reading the law. "It just can’t be written any plainer or better."
Earlier, in a posting on Twitter, Trump warned of dire consequences if his ban isn’t reinstated.
“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,” Trump said. “Politics!”
Trump’s airing of his frustrations -- a rarity for a president to discuss a case before the courts -- came a day after appeals court judges sharply questioned a Justice Department lawyer about the ban, in a session of high legal drama. A key issue in the case is whether Trump’s order can be reviewed by federal courts.
Less than three weeks after Trump took the reins of a divided nation, a hearing that in other circumstances might have been dry legal back and forth was a media event, played out by disembodied voices on a conference call that was streamed live. More than 130,000 turned to a YouTube channel, while CNN broadcast the hearing.
The issue Tuesday was whether a federal judge’s ruling won by two states could continue to block Trump’s executive order, which he issued without warning on Jan. 27 in the name of national security. But there was a quick escalation from that narrow matter into constitutional and procedural questions about the power of a president to exclude people he considers threats.
The grilling of both sides was rapid-fire, with August Flentje, representing the Department of Justice, facing harsher questioning than his adversary. Flentje appeared flustered at times, saying at one point, “I’m not sure I’m convincing the court.”
Noah Purcell, the Washington solicitor general representing the states of Washington and Minnesota, also came under the gun, challenged about evidence that the ban discriminates on the basis of religion. Judge Richard Clifton said he was “not entirely persuaded,” noting the order affected only a small share of the world’s Muslims.
A decision by the three-judge panel may come this week. The jurists gave no clear sense of how they would rule. They could leave in place the temporary restraining order issued Feb. 3 by a Seattle judge that put Trump’s restrictions on hold, lift it or retain some of it.
Whatever the ruling, it is almost certain to head to the U.S. Supreme Court.
Among the key issues before the court: whether the states have a legal right to attack the administration’s immigration orders, whether the ban discriminates against Muslims and whether the people of Washington and Minnesota have been harmed directly. The three judges fired off questions on those and more, citing case law, frequently interrupting the lawyers, sometimes sounding impatient.
“The judges were better prepared,” said Bruce Rogow, a constitutional law professor at Nova Southeastern University in Fort Lauderdale, Florida, who has argued 11 times before the U.S. Supreme Court. “I think the court was eager to have great arguments. I think the court left the case concluding they were going to have to do it themselves.”
The judges posed dozens of questions about Trump’s authority to issue the order. Flentje maintained courts can only do limited reviews of such actions, and Trump’s executive order passes the test. The government also says that states have no right to sue over the matter. The judges pressed Flentje for evidence the seven countries covered by the ban are particular sources for potential terrorism.
Purcell said Trump’s statements as a candidate provided a treasure trove of evidence supporting claims the ban was intended to discriminate against Muslims. “It’s remarkable to have this much evidence of intent,” he said.
Flentje reminded the appeals panel that a Boston federal judge had rejected considering Trump’s statements from the election campaign in ruling the president hadn’t overreached his authority. As far as the order, it doesn’t target Muslims, Flentje said.
Clifton seemed the most supportive of the administration -- though he called the U.S. argument about the terrorism risk “pretty abstract” -- and Judge Michelle Friedland most supportive of the states, at one point helping Purcell point to evidence in the record of intent of religious discrimination. Judge William Canby was harder to read, putting most of his questions to Flentje.
During the arguments, the judges were in Phoenix, Honolulu and San Jose, California, and the lawyers dialed in from their offices. The hearing was the top topic under “trending” on YouTube. People listened on CNN, the New York Times website and other platforms.
Washington and Minnesota contend Trump’s order is unconstitutional and hurts their residents and businesses, and that the president “unleashed chaos” by signing it. Taking their side in friend-of-the-court briefs are more than 120 companies including Apple Inc., Facebook Inc. and Microsoft Corp.
U.S. District Judge James Robart’s temporary restraining order halted the ban while the case is being litigated. Whatever the appeals court decides, Robart is moving ahead with the states’ request for a longer-term injunction, beginning with written arguments next week.
The Trump administration contention is that the Robart decision threatens national security and second-guesses the president. The judge also exceeded his authority by extending his ruling to include the entire country, according to Justice Department lawyers. Robart said voiding the president’s order nationwide was needed for consistency.
Other federal courts, including one in Brooklyn, have issued narrower rulings striking down certain parts of the ban. The Boston federal judge’s decision last week upholding the ban added to confusion about whether it remained in place as tens of thousands awaited definitive word.
As the hearing wore on Tuesday, the DOJ’s Flentje appeared to hint at a compromise by suggesting the court could limit the scope of the restraining order so that it wouldn’t apply to people with visas or green cards who had already been in the U.S. but were traveling abroad.
“That shows an acknowledgment that they think they may lose, while trying to salvage parts of the executive order,” said Geoffrey Hoffman, director of the University of Houston Law Center Immigration Clinic, who predicted a victory for the states. “I think the fundamental argument of the president and the federal government is that there is no judicial review. As the panel recognized, that is not the law.”
Laura Foote Reiff, a business immigration lawyer in Washington, said that “my gut is the Ninth Circuit will uphold” the temporary hold on the ban. But that doesn’t mean the states will ultimately succeed in blocking Trump’s order. Once “the case is heard on the merits, I think it’s a toss up.”
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