SAN FRANCISCO (CBS SF) — Judges on a federal appeals court panel appeared skeptical Tuesday about whether they should reinstate President Donald Trump’s ban on entry to the United States by citizens of seven predominantly Muslim countries.
“Has the government pointed to any evidence connecting these countries with terrorism?” Judge Michelle Friedland asked U.S. Justice Department attorney August Flentje.
The Trump administration is asking the 9th U.S. Circuit Court of Appeals for an emergency stay of a temporary restraining order in which a federal trial judge in Seattle on Friday blocked implementation of the ban.
A three-judge panel of the San Francisco-based circuit court took the appeal under submission after hearing an hour of arguments by telephone.
Friedland said the panel will hand down its written ruling as quickly as possible. Court spokesman David Madden said the decision is expected this week.
The circuit court’s decision is likely to be appealed by whichever side loses to the U.S. Supreme Court, which currently has a 4-4 split of conservative and liberal justices.
The ban, issued by Trump in an executive order on Jan. 27, would bar visitors and refugees from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days.
It would stop refugees from all countries for 120 days and exclude Syrian refugees indefinitely.
Flentje told the panel that the ban was a “brief pause” to enable administration officials to review and if necessary improve security procedures.
He argued the measure was “well within the president’s power” to determine national security risks and set protections against them.
U.S. District Judge James Robart issued the temporary restraining order in a lawsuit filed by Washington state and Minnesota.
The two states, supported in “friend-of-the court” briefs by 18 other states including California, say the ban “unleashed chaos” and would hurt the states’ residents, universities, medical institutions and economies.
They contend it denies due process and equal treatment to the people affected and discriminates against Muslims.
Flentje answered Friedland’s question about a terrorism connection by noting that Congress and President Obama in 2015 and 2016 said there should be extra scrutiny before visitors from the seven countries are given
But Judges William Canby and Richard Clifton then asked whether that extra scrutiny provides the protection needed.
“Is there any reason for us to think there is a real risk if the existing procedures are allowed to stay in place while the procedures are revised?” Clifton asked.
All three judges asked questions about whether Trump’s order, which does not mention Islam by name, discriminated against Muslims and what proof should be needed.
Washington state Solicitor General Noah Purcell said the court could look at Trump’s campaign vow to ban all Muslims as evidence of discriminatory intent.
“We’ve alleged very plausibly with great detail that this was done with the intent to favor one religious group over another,” he told the panel.
Clifton noted that the seven countries contain only about 15 percent of the world’s Muslims and said, “The vast majority of Muslims are unaffected.”
Purcell contended, however, that the executive order could be found discriminatory if it targets some Muslims on the basis of religion, even if it doesn’t affect all Muslims.
If the temporary restraining order is left in place by the 9th Circuit and the Supreme Court, the case would go back to the federal district court in Seattle for a hearing on whether Robart should grant a preliminary injunction.
Robart has ordered final briefs on the issue to be submitted by Feb. 17 and has indicated he would hold an injunction hearing soon.
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