Late yesterday, a panel of the Court of Appeals for the Ninth Circuit Court of Appeals heard oral argument in the Federal Government’s appeal of the stay issued last Friday issued last Friday by a Federal District Court in Washington against President Trump’s Executive Order barring most travel from seven majority Muslim countries, and the argument did not appear to go very well for the attorneys defending the Executive Order:
WASHINGTON — A Justice Department lawyer on Tuesday said courts should not second-guess President Trump’s targeted travel ban, drawing skepticism from a three-judge federal appeals panel weighing the limits of executive authority in cases of national security.
But even August E. Flentje, the Justice Department’s lawyer, sensed he was not gaining ground with that line of argument. “I’m not sure I’m convincing the court,” Mr. Flentje said.
It was a lively but technical hearing on an issue that has gripped much of the country’s attention — and that of foreign allies and Middle East nations — for the past week. Issued without warning on Jan. 27, just a week after Mr. Trump took office, the executive order disrupted travel and drew protests at the nation’s airports by suspending entry for people from seven predominantly Muslim countries and limiting the nation’s refugee program.
No matter how the United States Court of Appeals for the Ninth Circuit rules — in a decision that is expected within days — an appeal to the United States Supreme Court is likely. That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.
The appeals court judges sometimes seemed taken aback by the assertiveness of the administration’s position, which in places came close to saying the court was without power to make judgments about Mr. Trump’s actions.
“This is a traditional national security judgment that is assigned to the political branches,” Mr. Flentje said.
“Are you arguing, then, that the president’s decision in that regard is unreviewable?” Judge Michelle T. Friedland asked a few minutes later.
Mr. Flentje paused. Then he said yes.
“There are obviously constitutional limitations, but we’re discussing the risk assessment,” he said.
Judge Friedland asked what those limitations were, and Mr. Flentje did not provide a direct answer.
Several courts around the nation have blocked aspects of Mr. Trump’s order, but the broadest ruling was the one at issue in Tuesday’s arguments in front of the Ninth Circuit. The panel was considering an earlier ruling by Judge James L. Robart of the Federal District Court in Seattle, which allowed previously barred travelers and immigrants to enter the country.
Judge William C. Canby Jr., appointed by President Jimmy Carter, asked Mr. Flentje a hypothetical question meant to probe the limits of his position. “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’”
Mr. Flentje said the two states that have sued over Mr. Trump’s executive order, Washington and Minnesota, would be powerless to challenge that scenario. He said other plaintiffs might be able to sue on religious discrimination grounds.
Noah G. Purcell, Washington State’s solicitor general, fared little better in fending off questions from Judge Richard R. Clifton, appointed by President George W. Bush. Judge Clifton said the states’ evidence of religious discrimination was thin, adding that “the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny.
Judge Friedland, who was appointed by President Barack Obama, did not seem persuaded that immediate suspension of travel from the seven countries was necessary.
“Has the government pointed to any evidence connecting these countries with terrorism?” she asked Mr. Flentje.
He responded that the government had not had an opportunity to present evidence in court given the pace of the litigation. “These proceedings have been moving quite fast, and we’re doing the best we can,” Mr. Flentje said.
With that, Judge Friedland said, the government’s appeal may be premature.
The case, State of Washington v. Trump, is in its earliest stages, and the question for the appeals court on Tuesday was a narrow one: Should it stay Judge Robart’s temporary restraining order and reinstate the travel ban while the case proceeds?
The argument, which lasted about an hour, was conducted over the telephone and was streamed live on the appeals court’s website. In a media advisory issued before the argument, the court said that “a ruling was not expected to come down today, but probably this week.”
Mr. Flentje said the travel ban was well within Mr. Trump’s legal authority. A federal statute specifically gave presidents the power to deny entry to people whose presence would be “detrimental to the interests of the United States,” he said.
He added that the court should not question Mr. Trump’s motives, and should confine itself instead to “the four corners of the document.” He said the executive order did not, on its face, discriminate on the basis of religion.
Mr. Purcell, the lawyer for Washington State, responded that the underlying purpose of the executive order was religious discrimination. As a candidate, Mr. Purcell said, Mr. Trump had “called for a complete ban on the entry of Muslims.”
(…)
As he closed his argument, Mr. Flentje, perhaps sensing that he was unlikely to achieve a complete victory, offered the court a middle ground. He asked, at a minimum, for the court to reinstate a part of the ban against people who have never been in the United States, calling this a “really key point.”
Reading from a brief, he conceded that those who could be allowed entry are “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”
Judge Clifton said that the administration might be in a better position to narrow its executive order. “Why shouldn’t we look to the executive branch to more clearly define what the order means?” he asked.
Mr. Purcell also said that it was hard to tell precisely what distinctions the government meant to draw. “They’ve changed their mind about five times” since the executive order was issued, he said.
Judge Friedland said that if the executive order violated the Constitution’s ban on government establishment of religion, the court could block it completely.
As I’ve said many times before, one should always be careful in attempting to draw conclusions regarding how a Court is going to decide a particular case based on oral argument. In many cases, Judges ask questions for reasons that don’t necessarily have anything to do with how they might feel about the legal merits of a particular case and which don’t ultimately square with how they end up ruling. Sometimes, for example, it’s done to attempt to influence other Judges on a particular point of law in an effort to bring them over to their side of a particular argument. Other times, it’s done to shine a light on what the Judge, based on the papers that have been filed, believes to be a strength or weakness in the lawyer’s argument or to simply clear up some ambiguity in the arguments between the two sides. And sometimes, questions are asked because a Judge simply wants to force the argument in a particular direction because they believe this is a more crucial part of the argument than what the lawyer speaking may be talking about. From the advocate’s point of view, it can be frustrating because questioning fro the bench inevitably makes it difficult to stick to whatever game plan you may have regarding oral argument, and the deeper into a particular point of law or the facts that may not be completely relevant to the core of your argument you get, the less time you have to make the points you consider crucial to your case. All of this is magnified when you’re arguing before more than one Judge. Add into this the somewhat disconcerting factor of oral argument via telephone as occurred in this case, which often makes argument more difficult because you lose the ability to “read” how a Judge may be responding to your argument since you can’t see them, and it’s easy for even the best attorney to get thrown off.
With all that being said, I do have to agree with the assessment of the account in The New York Times and some other news outlets that the lawyer arguing the case for the Federal Government did seem to face more skepticism from the Judges than the Solicitor General from the State of Washington, who was arguing on behalf of both his stage and the other Plaintiff in the case, the state of Minnesota. It began fairly early in the proceedings when one of the Judges asked him if he believed the issues before the court were even reviewable by the judiciary and he essentially said that they weren’t and that the question of whether or not the President’s assessment that the seven countries included in the ban was a national security issue left to the President’s sole discretion or one shared by Congress and the President to the extent Congress may define the criteria to be used by the President in making a decision to limit travel from particular countries for reasons of national security. He held to this position even when asked if this position would change if the order said that no Muslim’s at all could come into the United States regardless of where they came from. As a general rule, it’s often a mistake to tell a Judge that they shouldn’t even be ruling in a particular case, especially when it’s clear that they are skeptical of this claim, and it was clear from the tone of the Judge that raised this question that she was indeed skeptical. In any case, this seemed to set the tone for the remainder of the Federal Government’s side of the argument as the lawyer spent the balance of his time dealing with what often turned into a barrage of questioning, principally from Judge Fitzgerald and Judge Canby who both seemed skeptical of the scope of the argument that the Federal Government was making. Additionally, when the Federal Government’s attorney appeared to concede at least part of the Plaintiff’s case by arguing that the Court could respond to it by essentially rewriting the Executive Order to make clear that it doesn’t apply to people who already have Permanent Residency or people with visas who have previously entered the United States, they asked him directly why the Court should assume the authority to rewrite the Executive Order if this is something that the President hasn’t done. The third Judge on the panel, Judge Clifton, appeared to be more sympathetic to the Federal Government’s argument, but even he was skeptical about their argument at this stage in the case and asked the Justice Department lawyer why the panel shouldn’t wait for further proceedings in the District Court, and a broader ruling on a Preliminary Injunction, before ruling on the request for a stay. By the time the Federal Government’s side was over, the Court seemed to be very skeptical of the Executive Order and the Federal Government’s argument.
While the attorney for the Plaintiff’s in the case had a seemingly easier time before the panel than his Federal counterpart, that shouldn’t lead one to believe that his argument didn’t also come under criticism during questioning. One of the areas where Plaintiff’s counsel ran into trouble was over his assertion that the Executive Order was effectively a ban on Muslim’s traveling to the United States and the argument that this was barred under the Establishment Clause of the First Amendment, an argument that appeared to bother Judge Clifton in particular. Plaintiff’s counsel also came under fire on the issue of what gave the states standing to challenge the order as opposed to an immigrant or someone seeking to come to the United States. This point became clearer when Judge Clifton, who appeared to be the most skeptical of the Plaintiff’s argument, questioned the scope of Judge Robart’s TRO and the question of how many Muslims, or residents of Washington and Minnesota, the Executive Order actually impacted. Plaintiff’s counsel stumbled under questioning a few times, which is natural for even the best of attorneys, but on the whole seemed to fare better than the attorney for the Federal Government. Whether that means anything for the outcome of this appeal on the narrow issue of whether or not to grant a stay of Judge Robart’s ruling is something we’ll have to wait until the decision comes down to find out.
At the conclusion of the hearing, the Court said that a decision would be issued as soon as possible and made it clear that the Judges would do their best to get it done before the end of this week. Realistically speaking, I’d say the earliest we can probably expect a written ruling would be some time before the close of business on the West Coast today. As for the outcome, that’s anyone’s guess. Based on the way questioning went it appears to me, though, that Judge Fitzgerald seems to be the most sympathetic to the Plaintiff’s argument while Judge Clifton seems as though he’d be more likely to agree with the Federal Government’s position on imposing a stay against Robart’s order. That would leave Judge Canby, a Carter appointee who has been on the bench since 1980, in the middle and while he did question both attorneys aggressively it seemed as though he was more inclined to be sympathetic to the Plaintiffs in this case than the Federal Government. If that’s an accurate read, that would mean a 2-1 ruling in favor of keeping Judge Robart’s TRO in place and returning the case to the District Court for further proceedings. In reality, though, this hearing and the subsequent ruling will just be the first step in the appeal of the TRO. Whichever side loses is likely to appeal the ruling to either the full Ninth Circuit, which could agree to consider the request for a stay en banc if it chooses to do so, or to the Supreme Court. Given the fact that the Supreme Court currently still standings at eight members, though, means that how the 9th Circuit decides this case could be vitally important to what happens going forward with respect to this Executive Order since a divided Supreme Court, which would be inevitable unless Justice Kennedy sides with the Court’s liberals on the question of granting a stay, means that the 9th Circuit’s ruling would stand as the final ruling on the issue of a stay.
All of that, though, will have to wait for the ruling of this three-judge panel. When it is posted, it will be available at the public access page the Court has set up for the case.
You can listen to the oral argument yourself here:
