President Donald Trump’s public pleas for a ban on Muslims entering the United States could turn out to be a threat to the legality of his executive order imposing immigration restrictions, or so it appeared after a federal appeals court held a historic hearing Tuesday afternoon on that order. Although the order in specific terms is not aimed at Muslims, the challengers have offered the president’s own words to prove that it actually was, and the three-judge panel appeared inclined to consider that as valid evidence.
The three judges of the U.S. Court of Appeals for the Ninth Circuit, holding the one-hour hearing by telephone hookup with each of them joining in from a different city, made suggestions that they will seriously consider ruling broadly, not narrowly, on the Trump Administration’s defense of the order and its request to put it back into full effect. It has been on a temporary hold since a federal trial judge in Seattle blocked it last Friday pending further review.
A broader ruling by the appeals court, either in favor of or against the presidential order, could set the stage for an early review of the high-stakes constitutional controversy by the Supreme Court.
Specifically at issue is the government’s request for an appeals court order to postpone the Seattle judge’s temporary restraining order while federal lawyers pursue an appeal to get it overturned. The prospect arose during the hearing that the panel might even reach for a ruling that would directly decide the merits of the order’s legality. The presiding judge, Michelle T. Friedland, appeared to be most inclined to do that.
From the tone and content of the judges’ questions to the two lawyers, it appeared that Judge Friedland and Senior Judge William C. Canby, Jr., were more skeptical of the Trump order’s validity, while the third member, Judge Richard Clifton, appeared more doubtful of the arguments made for the two states challenging the president’s action.
But, when the issue arose over whether the panel should consider President Trump’s own statements that he wanted a ban on Muslims although the final order itself does not say that, even Judge Clifton said evidence of that was clearly “on the table.” That evidence could help bolster one of the core constitutional arguments of the challenging states – that the order is an unconstitutional form of religious discrimination.
The states’ lawyer, Washington’s state solicitor general, Noah Purcell, had the most difficulty during the hearing with tough questioning from Judge Clifton. The judge expressed doubt that the executive order in final form should be interpreted as a Muslim ban when it only targeted nations that perhaps have no more than 15 percent of the world’s followers of Islam.
The Trump Administration lawyer, Justice Department special counsel August E. Flentje, drew the toughest questions from Judge Friedland. She sharply questioned whether the government had recent evidence to justify its view that the seven targeted nations with Muslim majorities were, in fact, a genuine threat of exporting terrorism to the United States. When Flentje started to call up a few examples of potential threats, the judge cut him off by noting that such information was not technically before the court.
In recent days, the Trump legal team has been pressing a fallback argument in case the appeals court refused to put back into the effect the full scope of the executive order. At most, they argued, a ban on enforcement should be limited solely to protect foreign nationals who already have ties to the U.S. but are temporarily abroad or plan to travel in the future.
But none of the three judges appeared interested in an attempt to try to pick and choose between restrictions to be allowed or prohibited. Judge Clifton, for example, said the court would have no basis for editing the restrictions’ scope.
That judge also questioned the authority of White House attorneys to try to narrow the breadth of the Trump order after it had been issued. The court, he suggested, might be inclined to require the president and his top aides to rewrite the order to narrow it.
As the hearing ended, Judge Friedland said the court understood how important the case is, and said the judges would try to issue a decision “as soon as possible.” Given the complexity of the case, and the judges’ potentially differing approaches, it appeared doubtful that a full-scale opinion would emerge before sometime Wednesday at the earliest. It is possible that a brief order could come out earlier, to be explained later.
(This post also appears today at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)