President Donald Trump won a narrow, hard-fought victory on Tuesday as Vice President Mike Pence’s historic tie-breaking vote lifted charter school advocate Betsy DeVos to confirmation as education secretary.
But Trump will have to wait to see if his administration snared a second win, as appeals court judges heard complex arguments and asked tough questions at a hearing weighing his executive order banning travel from seven largely Muslim nations,
The court was not expected to rule immediately, with a decision more likely to come later this week, a spokesman said. And whatever the court eventually decides, either side could ask the Supreme Court to intervene.
Pence’s vote on the DeVos nomination was the first by a vice president to break a 50-50 tie on a Cabinet nomination.
Two Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, joined Democrats in a marathon effort to derail the nomination of wealthy Republican donor De Vos.
Opposed by half the Senate, she faced criticism from teachers unions over her support of charter schools — and for lack of experience and confusion during her confirmation hearing. At one point, she said some schools should have guns because of the threat of grizzly bears.
DeVos was sworn in hours after the Senate vote by Pence himself, who said: “I can tell you, my vote for Betsy DeVos was the easiest vote I ever cast.”
DeVos supporters saw her confirmation as an occasion to breathe new life into a troubled American school system and a chance to shift power from Washington to the local level.
“President Trump’s swamp got a new billionaire today,” the Democratic National Committee said in a statement. “Millions of teachers, parents and students could not have made their opposition to Betsy DeVos’ confirmation any clearer — they do not want someone whose only education experience is dismantling public schools.”
In addition to DeVos, Republicans hope to confirm a series of other divisive nominees this week: Alabama Republican Sen. Jeff Sessions as attorney general, GOP Rep. Tom Price of Georgia as health secretary and financier Steven Mnuchin as treasury secretary.
Meanwhile, Labor Secretary nominee Andrew Puzder acknowledged Tuesday that he had employed a housekeeper who wasn’t authorized to work in the U.S., as the Senate’s top Republican came to his defense and dismissed the issue as a “mistake” that had been fixed.
“Number one, the administration strongly supports Andy Puzder and wants to stick with him,” Senate Majority Leader Mitch McConnell told reporters. “He’s qualified for the job, and for myself, I’m enthusiastically in his camp.”
Lively hearing
Trump said Tuesday that he cannot believe his administration has to fight in the courts to uphold his refugee and immigration ban, a policy he says will protect the country from terrorism.
“And a lot of people agree with us, believe me,” Trump said at a round-table discussion with members of the National Sheriff’s Association. “If those people ever protested, you’d see a real protest. But they want to see our borders secure and our country secure.”
But fight they did. Tuesday’s hearing before the San Francisco-based 9th Circuit Court of Appeals judges — two Democratic appointees and one Republican — featured many lively exchanges in an unusual format, with arguments made via conference call.
The government asked the court to restore Trump’s order, contending that the president alone has the power to decide who can enter or stay in the United States. Several states insist that it is unconstitutional.
The states challenging the ban want the appellate court to allow a temporary restraining order blocking the travel ban to stand as their lawsuit moves through the legal system.
Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked whether the government has any evidence connecting the seven nations to terrorism.
August Flentje, arguing for the Justice Department, told the judges that the case was moving fast and the government had not yet included evidence to support the ban. Flentje cited a number of Somalis in the U.S. who, he said, had been connected to the al-Shabab terrorist group after judges asked for evidence.
Judge Richard Clifton, a George W. Bush nominee, asked an attorney representing Washington state and Minnesota, which are challenging the ban, what evidence he had that it was motivated by religion.
“I have trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected.”
He said only 15 percent of the world’s Muslims were affected, according to his calculations, and said the “concern for terrorism from those connected to radical Islamic sects is hard to deny.”
Noah Purcell, Washington state’s solicitor general, cited public statements by Trump calling for a ban on the entry of Muslims to the U.S. He said the states did not have to show every Muslim is harmed, only that the ban was motivated by religious discrimination.
Under questioning from Clifton, a Justice Department lawyer did not dispute that Trump made the statements.
Purcell said that restraining order has not harmed the U.S. government. Instead, he told the panel, Trump’s order had harmed Washington state residents by splitting up families, holding up students trying to travel for their studies and preventing people from visiting family abroad.
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