The Trump order: 9th Circuit judges give verbal going-over to Trump lawyer

Washington AG Bob Ferguson speaks after federal judge grants restraining order halting enforcement of President Trump’s executive order on immigration

A three-judge panel of federal appellate judges delivered a critical going-over to a Trump administration lawyer asking them to overturn a temporary restraining order that has blocked the President’s controversial immigration order.

President Trump’s own words, including a call for a ban on allowing Muslims to enter the United States, seemed to inflict the greatest damage on the federal government’s case to vacate the order by Seattle-based Judges James Robart.

The state of Washington has argued religious discrimination is behind the President’s executive order which bans travelers from seven predominantly Muslim nations. The order shows a “rather shocking intent to discriminate against Muslims,” argued state Solicitor General Noah Purcell.

“Could the President simply say in the order, ‘We’re not going to let Muslims in?” asked Judge William C. Canby, Jr.

“This is a far cry from that situation,” replied Trump administration counsel August Flentje. He skirted the question, but moments later added: “It’s not an order that discriminates on a basis of religion.”

Caption

Thousands fill Westlake while listening to speakers including Gov. Jay Inslee and former Congressman Jim McDermott at the Stand With Immigrants rally at Westlake Park on January 29, 2017. The Trump immigration crackdown has spawned demonstrations across the country, and an historic legal challenge from the states of Washington and Minnesota.

Thousands fill Westlake while listening to speakers including Gov. Jay Inslee and former Congressman Jim McDermott at the Stand With Immigrants rally at Westlake Park on January 29, 2017. The Trump

Judge James Robart reads his decision granting the states of Washington and Minnesota a temporary restraining order, blocking President Trump’s executive order on immigration, Friday, Feb. 3, 2017.The Trump administration has gone to the U.S. 9th Circuit Court of Appeals, arguing that the restraining order should be thrown out.

Washington state Solicitor General Noah Purcell, left, and Attorney General Bob Ferguson. “We know for a fact that the President called for a complete ban on Muslims entering the country,” Purcell tells U.S. 9th Circuit Court of Appeals.

Purcell cited Trump’s campaign call for a complete ban on Muslims entering the United States. He cited a statement by ex-House Speaker Newt Gingrich, made recently on Fox News, that Trump had reached out for a legal way to implement the Muslim ban.

Flentje argued that President Trump was “well within the Presidents powers as delegated to him by Congress” to ban entry by citizens of seven predominantly Muslim nations. He said Trump had determined there was a “real risk” in not banning travel at least temporarily.

“It was the Executive Order itself that caused irreparable harm to our state,” countered Purcell.

“What is the irreparable harm to Washington?” asked Judge Richard Clifton.

“Thousand of people in Washington” and “thousands of people in Minnesota” — which is also challenging the Trump ban — are impacted, Purcell argued. They include scholar stranded overseas, families separate, and lost tax revenues to the states.

The order blocks entry into the U.S. of people from Iraq, Iran, Libya, Somalia, Syria, Sudan and Yemen.

Judge Clifton noted already-extensive vetting of people from countries known to harbor terrorists, and asked: “Is there any reason for us to think that there’s a real risk or that circumstances have changed such that there’s a real risk?’

The U.S. 9th Circuit Court of Appeals panel promises a ruling “as soon as possible” on whether to lift the restraining order issued Friday in Seattle by Robart, a U.S. District Judge named to the federal bench by President George W. Bush.

(President Trump, in a tweet, referred to Robart as a “so-called judge.”)

Whichever way the Niners rule, Trump indicated that the case is headed to the U.S. Supreme Court, currently at eight members. “We’re going to take it through the system,” Trump told reporters. “It’s very important for the country . . . We’ll see what happens. We have a big court case. We’re well represented.”

The judges hearing the appeal Tuesday were Michelle Friedland, a Barack Obama appointee; Canby, who was appointed by Jimmy Carter; and Clifton, a George W. Bush appointee. The argument was conducted by phone, with Friedland in San Jose, Calif., Canby in Phoenix; and Clifton in Honolulu.

The arguments on Tuesday represented an extraordinarily different way of looking at the President’s authority over National Security.

“It i9s extraordinary for a court to enjoy a President’s national security determination based on some newspaper articles,” Flentje argued, referring to stories about Trump’s past declarations on Muslims.

Purcell countered: “We know for a fact that the President called for a complete ban on a Muslim entering the country.”

“This is not that ban,” Clifton cautioned.

Restraining orders are issued when plaintiffs show the potential of “irreparable harm” and show that they have a reasonable likelihood of winning the case.

Ending his argument, Purcell told the 9th Circuit panel: “At this point, it is federal defendants who have to show the likelihood of success on appeal.”

Thd Niners decision will have a lot of impact on a lot of lives. It could impact thousands of travelers, families, scholars and Seattle-bound tech employees whose visas were revoked by Trump’s Executive Order, then restored by Judge Robart’s restraining order.

The restraining order has frozenTrump’s order nationwide.

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