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Appeals Hearing on Travel Ban Filled with Bickering
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Summary: Neither the Justice Department nor Washington State attorneys were free from the hard questions presented by the appeals court judges.

In a live telephonic hearing, all three federal appeal judges did not hesitate to grill lawyers from both sides of the travel ban debate. The judges are deciding whether or not to lift a freeze placed by a federal judge on President Donald Trump’s executive order banning the entrance of individuals into the United States from seven countries.


The ban has received lawsuits from Washington state, Minnesota state, and several advocacy groups. The judges wasted no time addressing the heart of the issue concerning the President’s use of power, the connection between the seven countries and terrorism, and when to draw the line over intentional discrimination.

DOJ attorney August Flentje focused on the authority that U.S. District Court Judge James Robart has to intervene on this national security issue when he suspended the order last week. Flentje said, “This is a traditional national security judgment that is assigned to the political branches and the President and the court’s order immediately altered that.”

The three judges immediately jumped on his argument, wanting an explanation on the limits of his positon. Judge Michelle Friedland drilled, “Has the government pointed to any evidence connecting these countries with terrorism?” Flentje countered, “The district court’s decision overrides the President’s national security judgment about the level of risk and we’ve been talking about the level of risk that’s acceptable.”

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Judge William Canby continued the questioning to an extreme conclusion, asking Flentje if the President can close the country’s borders to all Muslims. Flentje repeatedly answered, “That’s not the order.” Judge Richard Clifton would take that as an answer. Flentje agreed that someone would be able to challenge the executive order in that circumstance.

Washington State Solicitor General Noah Purcell was not exempt from questioning from the judges. They wanted him to explain how the order discriminates Muslims when only a relatively small percentage of Muslims are from the seven banned countries. Purcell argued, “You don’t have to prove it harms every Muslim – you just need to show the action was motivated in part by animus.” Clifton retorted, “I don’t think allegations cut it at this stage.”

Purcell went on to argue that the ban has placed irreparable harm on state residents due to lost tax revenue, but Clifton was skeptical of that claim. He wondered how many people in Washington were actually hurt by the executive order, stating “I suspect it is a small fraction.”

The Ninth Circuit has a reputation for swaying heavily to the liberal side, but there is no denying that the technicality of the case will have to be weighed seriously by the judges.

How do you think the court will rule? Tell us your predictions in the comments below.

To learn more about the travel ban, read these previous articles:

Trump’s Travel Ban Heads to a Federal Appeals Court

At Least 60,000 Travelers Affected By Travel Ban

Trump’s Executive Order: “Muslim Ban” or Key to American Safety?



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