President Trump’s Justice Department struggled on Tuesday evening to answer whether anyone would have standing to challenge a ban on Muslims entering the United States.
During oral arguments before a three-judge 9th Circuit panel on a restraining order blocking a ban on migration from seven predominantly Muslim countries, the Justice Department’s August Flentje at first refused to answer questions about a hypothetical ban on Muslims entering the U.S.
Judge William Canby Jr., an appointee of former President Jimmy Carter, pressed Flentje on whether any American had standing to challenge Trump if he decided to go through with the Muslim ban that he proposed as a presidential candidate.
“Could the president simply say in the order, we’re not going to let any Muslims in?” Canby asked.
“That’s not what the order does here,” Flentje replied.
“I know, I know that,” Canby interjected. “Could he do that?”
“That’s not what the order does,” Flentje said.
“Would anybody be able to challenge that?” Canby pressed.
“That’s not what the order does here,” Flentje said.
Flentje later acknowledged that an American citizen would have standing to challenge such an order.
“If there were an executive order that prevented the entry of Muslims, there would be people with standing to challenge that and I think that would raise Establishment Clause, First Amendment issues,” Flentje said in his rebuttal after opposing counsel’s argument.
“But that’s not the order we have here. This order is limited to the countries defined by Congress.”
Judge Michelle Friedland, an appointee of former President Barack Obama, noted that opposing counsel for the state of Washington had submitted evidence that they believed showed banning Muslims was a motivating factor for Trump.
“Why shouldn’t the case proceed, perhaps to discovery, to see if that really was the motivation or not?” Friedland asked.
“We’re not saying the case shouldn’t proceed,” Flentje answered.
“But it is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles and that’s what has happened here. That is very troubling second-guessing of the national security decision made by the president.”
Judge Richard Clifton, an appointee of President George W. Bush, then raised the issue of Trump’s statements on the presidential campaign trail regarding a ban on Muslims.
In December 2015, Trump called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
Former New York City Mayor Rudy Giuliani, a Trump adviser, said Trump later asked him to put together a task force that could develop a legal way to implement Trump’s desired ban. The guidance Giuliani offered pre-dated Trump’s order banning migration from select predominantly Muslim countries.
Flentje acknowledged that Trump and other advisers spoke previously about a Muslim ban, but noted that the lower court judge issuing the restraining order blocking the ban said that the judge would not look at campaign statements made by Trump. Clifton said that the lower court judge was making a different point, and Clifton was simply trying to determine the statements that could be construed as potential evidence for an argument.
