21:27, February 07 479 0 theguardian.com

2017-02-07 21:27:10
Travel ban hearing: whose arguments are stronger and what happens next?

The legal battle over Donald Trump’s travel ban for seven Muslim-majority countries has entered a new stage on Tuesday, as the US ninth circuit court of appeals heard oral arguments over whether to keep in place a temporary restraining order issued by a federal judge last week.

In what may be the most gripping conference call in this nation’s history, attorneys for the state of Washington and the federal government were grilled by a panel of judges on topics including whether the state had the right to sue the US to what percentage of the world’s Muslims were affected by the ban.

But despite the expansive questioning, the court is being asked to decide a very narrow question: whether district judge James Robart was correct in granting a pre-trial injunction suspending the travel ban nationwide while Washington’s legal challenge is pending.

Here’s what you need to know about the hearing and what’s to come in the dispute over the controversial executive order:

Who was involved in Tuesday’s hearing?

Washington state solicitor general Noah Purcell argued on behalf of the state of Washington, while August Flentje, special counsel to the assistant US attorney general, argued for the federal government.

The three ninth circuit court judges who will decide on the stay are William Canby Jr, who was appointed by Jimmy Carter; Richard Clifton, who was appointed by George W. Bush; and Michelle Friedland, who was appointed by Barack Obama.

Washington has attracted significant support in its challenge to the Trump administration. Numerous technology companies, civil rights organizations, labor groups and law professors have filed amicus briefs in support of the restraining order. The District of Columbia and 17 states – including New York, California and Virginia – also filed briefs supporting Washington state.

On the other side, a group of organizations including Citizens United, the English First Foundation, Gun Owners of America, the US Border Control Foundation and the US Justice Foundation filed an amicus brief supporting the federal government.

What do the judges have to decide?

Judges grant temporary restraining orders if two conditions are met: there is a likelihood that the plaintiff will succeed on the merits of his arguments, and there is a likelihood of immediate, irreparable harm if the restraining order is not granted.

The federal government wants the ninth circuit to grant a stay, overruling Robart’s decision. Washington state wants the ninth circuit to allow the restraining order to remain in place and the court case to proceed to the next step at the district level.

What are the arguments in favor of the stay?

The federal government is arguing that immigration and national security are under the authority of the president, and that Congress has authorized the president to suspend certain classes of immigrants, making the executive order, as Flentje put it, “plainly constitutional”.

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Court hears challenges to suspension of Trumps’s travel ban

As far as immediate and irreparable harm, the judges pushed Flentje hard to provide evidence that the EO is protecting the country from any actual risk, given that there were already screening processes in place for visa recipients from the seven countries. Flentje mentioned that some Somalis in the US have been connected to the terrorist group al-Shabaab.

The government also argued in its motion that “Judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large”.

This argument appeared to be met with considerable skepticism by the judges, who, naturally, are invested in the power of the judiciary to review the executive branch.

“Are you arguing then that the president’s decision in the regard is unreviewable?”

“Yes,” Flentje responded, though he conceded that there are some “constitutional limitations” allowing for “limited review” in some cases.

What are the arguments in favor of keeping the restraining order in place?

Washington state’s argument for the temporary restraining order focused heavily on the irreparable harm of the travel ban to its citizens.

“Families were separated,” Purcell said. “Longtime residents were unable to travel overseas. There is lost tax revenue.”

The state also attacked the executive order as unconstitutional because it discriminates against Muslims.

The question of religious discrimination produced some of the most interesting discussion of the day, with Clifton wondering whether it made a difference that most of the world’s Muslims were unaffected by the ban, and Purcell retorting that “the president called for a complete ban on the entry of Muslims”.

Indeed, Trump’s campaign statements (and Rudy Giuliani’s recent television interview on the Muslim ban) became a key point of contention, with Purcell arguing that they were evidence of intent to discriminate.

Whose arguments are stronger?

Flentje seemed a bit discouraged by the harsh questioning from the judges, saying at one point, “I’m not sure I’m convincing the court”. But Purcell faced difficult questioning of his own.

Rory Little, a law professor at the University of California, Hastings, told the Guardian on Monday that he believed both sides had reasonably strong arguments about their likelihood of winning on the merits. But when it comes to showing irreparable harm, Little said, the balance was clearly in favor of maintaining the restraining order.

Indeed, Little called the government’s argument that judicial review in and of itself constituted a harm was “outrageous” and an “unbelievably, fundamentally misguided argument that goes to the heart of our constitutional balance of powers”.

What happens next?

The ninth circuit is expected to rule quickly on the motion for the stay. If they grant the stay, the executive order would go back into effect while the state of Washington continues its suit in district court. If the court declines to grant the stay, the federal government can file an emergency motion with the supreme court.

That motion would likely be referred to the whole court, Little said, setting up another showdown between the four conservative and four liberal justices. If the supreme court ties, the ninth circuit’s ruling remains in place.

Trump’s recent statements criticizing Judge Robart could damage the federal government’s chances of prevailing before the supreme court, Little argued.

“You’ve got a president who tweeted out that [Robart] is a ‘so-called’ judge. That’s insulting,” Little said. “Chief justice Roberts is the chief justice for all the federal judges in the country. He’s not going to like that.”

Meanwhile, the original case between Washington and the federal government will continue in district court, where Judge Robart is moving ahead with asking for briefs on a preliminary injunction against the executive order.