| SAN FRANCISCO/WASHINGTON
President Donald Trump's order temporarily banning U.S. entry to people
from seven Muslim-majority countries came under intense scrutiny on Tuesday
from a federal appeals court that questioned whether the ban unfairly targeted
people over their religion.
During a more than hour-long oral argument, a three-judge panel of the 9th
U.S. Circuit Court of Appeals pressed a government lawyer whether the Trump
administration's national security argument was backed by evidence that people
from the seven countries posed a danger.
Judge Richard Clifton, a George W. Bush appointee, posed equally tough
questions for an attorney representing Minnesota and Washington states, which
are challenging the ban. Clifton asked if a Seattle judge's suspension of
Trump's policy was "overbroad."
The 9th Circuit said at the end of the session it would issue a ruling as
soon as possible. Earlier on Tuesday, the court said it would likely rule this
week but would not issue a same-day ruling. The matter will ultimately likely
go to the U.S. Supreme Court.
Trump's Jan. 27 order barred travelers from Iran, Iraq, Libya, Somalia,
Sudan, Syria and Yemen from entering for 90 days and all refugees for 120 days,
except refugees from Syria, whom he would ban indefinitely.
Trump, who took office on Jan. 20, has defended the measure, the most
divisive act of his young presidency, as necessary for national security.
The order sparked protests and chaos at U.S. and overseas airports.
Opponents also assailed it as discriminatory against Muslims in violation of
the U.S. Constitution and applicable laws.
A federal judge in Seattle suspended the order last Friday and many
travelers who had been waylaid by the ban quickly moved to travel to the United
States while it was in limbo.
August Flentje, representing the Trump administration as special counsel
for the U.S. Justice Department, told the appellate panel that "Congress
has expressly authorized the president to suspend entry of categories of
aliens" for national security reasons.
"That’s what the president did here," Flentje said at the start
of the oral argument conducted by telephone and live-streamed on the internet.
TOUGH QUESTIONING
When the 9th Circuit asked Flentje what evidence the executive order had
used to connect the seven countries affected by the order with terrorism in the
United States, Flentje said the "proceedings have been moving very
fast," without giving specific examples.
He said both Congress and the previous administration of Democrat Barack
Obama had determined that those seven countries posed the greatest risk of
terrorism and had in the past put stricter visa requirements on them.
"I'm not sure I'm convincing the court," Flentje said at one
point.
Noah Purcell, solicitor general for the state of Washington, began his
argument urging the court to serve "as a check on executive abuses."
"The president is asking this court to abdicate that role here,"
Purcell said. "The court should decline that invitation."
The judges pummeled both sides with questions. Clifton pushed both
attorneys about whether there was evidence the ban was intended to discriminate
against Muslims.
"I don't think allegations cut it at this stage," Clifton told
Purcell.
Clifton later questioned Flentje after the attorney argued the Seattle
judge had second-guessed Trump's order "based on some newspaper
articles."
The judge referred to recent televised statements by former New York Mayor
Rudy Giuliani, who advised Trump during his campaign and transition, that the
president had asked him for advice about implementing a legal Muslim ban.
"Do you deny that in fact the statements attributed to then candidate
Trump and to his political advisers and most recently Mr. Giuliani,"
Clifton asked. "Do you deny that those statements were made?"
CAMPAIGN PROMISE
Trump frequently promised during his 2016 election campaign to curb illegal
immigration, especially from Mexico, and to crack down on Islamist violence.
National security veterans, major U.S. technology companies and law
enforcement officials from more than a dozen states have backed a legal effort
against the ban.
"I actually can't believe that we're having to fight to protect the
security, in a court system, to protect the security of our nation," Trump
said at an event with sheriffs at the White House on Tuesday.
The legal fight over Trump's ban ultimately centers on how much power a
president has to decide who cannot enter the United States and whether the
order violates a provision of the U.S. Constitution that prohibits laws
favoring one religion over another, along with relevant discrimination laws.
The appeals court is only looking, however, at whether the Seattle court
had the grounds to halt Trump's order while the case challenging the underlying
order proceeds.
"To be clear, all that's at issue tonight in the hearing is an interim
decision on whether the president's order is enforced or not, until the case is
heard on the actual merits of the order," White House spokesman Sean
Spicer said.
(Additional reporting by Amanda Becker, Timothy Gardner, David Shepardson
and Julia Edwards Ainsley in Washington, Mica Rosenberg and Leela de Kretser in
New York, and Kristina Cooke and Peter Henderson in San Francisco; Writing by
Howard Goller and Amanda Becker; Editing by Frances Kerry and Peter Cooney)
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