Lawyers arguing for both sides about President Trump's immigration ban faced blistering criticism from a federal appeals court Tuesday evening, as the three judges quickly pounced on their reasoning about the halt of the ban.
At issue in Washington et al. v. Donald J. Trump is a temporary restraining order issued by Judge James Robart, an appointee of President George W. Bush, who blocked Trump's ban on the grounds that the state of Washington proved the ban hurts residents' employment, education, business, family relations and freedom to travel. The 9th Circuit Court of Appeals then denied the Trump administration's request for the ban to continue for a stay while they considered the case.
On Tuesday, the Justice Department's August Flentje argued for the 9th Circuit to stay the restraining order, in whole or in part, and faced criticism from the 9th Circuit's three-judge panel. Flentje said an "irreparable injury" could result from the judges' not lifting the ban, given Trump's assessment of the risk of terrorism included in the executive order.
"Has the government pointed to any evidence connecting these countries [included in Trump's order] with terrorism?" asked Judge Michelle Friedland, an appointee of President Obama.
"These proceedings have been moving very fast," Flentje answered. "The president is relying on Congress' determination that these are countries of concern and Congress' procedures to identify countries of concern based on significant terrorist activity in the countries."
Judge Richard Clifton, an appointee of President George W. Bush, called the government's argument "pretty abstract, and asked for evidence of a "real risk." Flentje answered that the president determined there was a real risk.
When Flentje again mentioned that the proceedings had moved "quite fast," Friedland questioned why the 9th Circuit was hearing the case now.
"You're saying that the proceedings are moving fast but you appealed to us before you continued in the district court to develop the record," Friedland said, slamming Flentje.
Flentje then said the reason the Justice Department moved swiftly was because the president's decision on a matter of national security was impeded by the courts.
"The reason we sought immediate relief and a stay is because of the court's, the district court's decision overrides the president's national security judgment about the level of risk and we've been talking about the level of risk that is acceptable," Flentje said. "As soon as we're having that discussion, it should be acknowledged that the president is the official is charged with making those judgments."
"Are you arguing then that the president's decision in that regard is unreviewable?" Friedland asked.
"Yes," Flentje answered. "There are obviously constitutional limitations but we're discussing the risk assessment."
Flentje also argued that the state of Washington had no standing to challenge the ban and that foreign nationals didn't have constitutional rights to insulate them from the executive order.
"The state has admitted that people abroad without prior U.S. contacts do not have rights that can be asserted by them and we agree," Flentje said.
Noah Purcell, the attorney representing the states of Washington and Minnesota, similarly faced criticism from the panel for moving quickly and then complaining that the expedited hearings didn't allow for the full presentation of evidence it wanted to produce. Purcell told the court if the case was kicked backed to a lower court, his side would produce more information on the merits of the case and his side's standing in the case.
"It has always been the judicial branch's role to say what the law is and to serve as a check on abuses by the executive branch," Purcell said. "That judicial role has never been more important in recent memory than it is today. But the president is asking this court to abdicate that role here to reinstate the executive order without meaningful judicial review and to throw this country back into chaos."
Purcell argued that the government showed no irreparable harm by keeping the ban and argued that removing the ban could cause additional problems. His side also argued that it didn't have time to provide all the evidence it wanted to show the merits of this case, perhaps hinting that it would point out what it believed to be Trump's more sinister motivation.
He added later, "We're not saying that this is a complete ban on Muslims entering the country. ... The point is that that was clearly a motivating [factor]."
Evidence for Purcell's claim comes from former New York City mayor Rudy Giuliani, who said Trump asked him to develop a Muslim ban via a task force that could be done legally. The guidance provided by Giuliani led to Trump's order instead of an outright ban on Muslims.
Purcell faced tough criticism from the judges for trying to excuse his lack of evidence in regards to portions of his argument because of the quick-moving proceedings.
"The time between our filing, our complaint was filed a week ago Monday, together with the temporary restraining order motion, together with the declaration, we've had extraordinarily little opportunity to actually gather and present evidence in the district court," Purcell said.
"We faulted the government for exactly the same thing," Clifton interjected. "Don't tell us you need more time, you're the one that sought the temporary restraining order. Either you have the evidence presented in the record or you don't."
The 9th Circuit has handled the case in an expedited fashion, and a ruling on the arguments could come within days, with Friedland saying the judges would rule as soon as possible. The 9th Circuit's reputation as a historically left-leaning court makes it unlikely to yield a ruling that would please Trump. If the appeals court preserves the temporary restraining order while separate court proceedings take place on the merits of the ban, the Trump administration may push for additional review from the Supreme Court.
Petitioning the high court could present potential pitfalls for the Trump team, however, as an eight-justice court could divide evenly along ideological lines in a manner that does not reach the president's desired outcome. A Supreme Court review of the restraining order would also place the ban at center stage of the fight over Judge Neil Gorsuch's nomination to the high court.
Other cases pertaining to the ban could also end up at the Supreme Court. The 9th Circuit has not yet made any rulings or heard any arguments on the merit of the ban, meaning that fight is still to come and appears to be headed for the Supreme Court. Prior to Robart's decision blocking Trump's ban, a federal judge in Boston decided not to extend a temporary restraining order against Trump. Such conflicting in rulings in lower courts could produce additional litigation that would need to be resolved by higher courts, including potentially the Supreme Court.