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Washington: The fate of Donald Trump’s migrant crackdown was being decided on Tuesday night, after a rapid-fire, phone-hook-up court hearing, during which the much of the skepticism from the three-judge panel was directed at the lawyers attempting to defend the President’s controversial executive order.
The San Francisco-based Court of Appeals for the 9th Circuit said a decision on a Trump application, to be released from a stay order issued by a Seattle court, would “probably” be issued in the coming days, clarifying the position of tens of thousands of travellers whose visas were revoked under Trump’s order and then reinstated after the Seattle decision.
Speaking for Trump, Justice Department lawyer August Flentje insisted that the executive order that restricts entry to the US by migrants and refuges from seven Muslim-majority countries was “well within the President’s power as delegated to him by Congress,” and that the President had determined there was a “real risk” in not halting travel to the US from those countries.
“Are you arguing, then, that the President’s decision in that regard is unreviewable?” Judge Michelle Friedland asked. Flentje, hesitated before responding – “yes”. Then another judge, William Canby, jumped in: “Could the President simply say in the order, ‘We’re not going to let any Muslims in?'”
One of the judges wanted to know what evidence the government had that connected the seven countries with terrorism. Another, George W. Bush appointee Richard Clifton, observed that if a system of screening was already in place, “is there any reason for us to think that there’s a real risk or that circumstances have changed such that there’s a real risk?”
“The President determined that there was a real risk,” Flentje responded.
The conflicting questions before the court as Trump sought to be free of the stay on his order won by the states of Washington and Minnesota, were these – did Trump, as President, have authority to close US borders to people from Iraq, Iran, Somalia, Sudan, Libya, Syria and Yemen; or was he discriminating against Muslims and what bearing might the Washington-Minnesota claims of consequent hardship to people in those states have on the President’s handling of national security.
But the hearing, the audio of which was aired live on the court’s website, is just a way-stop in a legal adventure that inevitably will arrive on the docket of the US Supreme Court – and rather than a full-blown weighing of the arguments for and against, the appeal court’s decision is likely to be confined to whether or not the Trump travel ban can be reinstated pending further litigation.
By the reckoning of The Washington Post, Trump will find the going tough in the Supreme Court if his team can’t convince the San Francisco judges of the merits of its claim that the Seattle stay be put aside. At the same time, the Post argued that traditionally, the Supreme Court favours the presidency.
Initially, the order caused chaos and protests at airports around the country and the world as travellers, including thousands of permanent residents of the US, were blocked from travelling and, upon the issuing of the Seattle stay, a rush by the same travellers to get to the US before the order could be given a new life.
Washington state Solicitor General Noah Purcell also came under pointed questioning as he argued that the federal government was effectively asking the appeals court to “abdicate” its role as a check on the executive branch and “throw the country back into chaos”.
Clifton came after him too on the state’s key argument that Trump’s order was unconstitutional because it was deliberately discriminatory. Clifton claimed he was having “trouble understanding why we’re supposed to infer religious animus when in fact the vast majority of Muslims [in the world] would not be affected.”
Purcell cited Trump’s campaign rhetoric and that of his surrogates, particularly this ill-timed boast on national television by former New York Mayor Rudy Giuliani – “So when [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally”.
Flentje denied that the order was a Muslim ban, insisting that the judges should limit their consideration to the executive order itself. “It is extraordinary to enjoin the President’s national security determination based on some newspaper articles, and that’s what has happened here,” he said.
Flentje did seem to hedge on Trump’s behalf – he proposed a compromise, arguing that the judges could opt for a halfway house, by limiting the effect of the Seattle decision to foreigners who had previously been admitted to the US but who were still not in the US, or those in the US who wanted to travel abroad and have the right to return.
Trump has declared his intention to test the order the whole way to the Supreme Court, but he needs to pace himself because the court currently splits 4-4 between conservative and progressive judges and Democrats have decided to go-slow in the Senate confirmation of Trump’s nominee, Neil Gorsuch, for the court’s ninth berth.
The story Trump lawyer proposes travel ban compromise in appeals court first appeared on The Sydney Morning Herald.