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 predominantly
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. The San Francisco-based court of appeals won’t issue a decision
Wednesday, a court spokesman said.
“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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