DOJ, States Argue Whether To Lift Suspension Of Trump's Travel Ban

Feb 7, 2017
Originally published on February 7, 2017 6:49 pm
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ROBERT SIEGEL, HOST:

This evening, the 9th Circuit Court of Appeals heard arguments on whether to reinstate President Trump's executive order on immigration. The order limits travel from seven majority-Muslim countries, and it bars the arrival of all refugees into the United States. A federal judge in Seattle put a temporary restraining order on that policy last Friday, and that restraining order still stands for now.

Here to tell us more is NPR legal correspondent Carrie Johnson. Hiya.

CARRIE JOHNSON, BYLINE: Hi, Robert.

SIEGEL: Let's start with the government - federal government's argument here. What did they say?

JOHNSON: The Justice Department lawyer arguing for President Trump said Trump has more or less a blank check when it comes to immigration and national security. This executive order imposes just a temporary pause. And August Flentje, that lawyer, said, the lower court judge substituted his judgment for that of the White House. Congress, the Justice Department says, has given the president a lot of power. He's taking it here to protect Americans at the border.

SIEGEL: Those are the kinds of executive power arguments that we heard a lot after 9/11. How do you think they went over with the court?

JOHNSON: Well, Flentje for the Justice Department argued again and again the president had this authority to bar any class of traveler or immigrant if the White House determined they were detrimental to U.S. interests, and that's exactly what the White House did. But Flentje got pressed a lot about whether the judges could only review the words in this executive order or do more digging - look at statements and motives, possible religious favoritdom (ph) - that's - favoritism. That's one of the key elements of the state case here. Let's take a listen to Judge William Canby, a Carter appointee, asking the Justice Department lawyer a question.

(SOUNDBITE OF ARCHIVED RECORDING)

WILLIAM CANBY: Could the president simply say in the order, we're not going to let any Muslims in?

AUGUST FLENTJE: That's not what the order does here.

CANBY: Well, I know. I know that.

FLENTJE: And the order relies - sorry, your Honor.

CANBY: Could he do that?

FLENTJE: That's not what the order does...

CANBY: Would anybody be able to challenge that?

FLENTJE: That's not what the order does here.

CANBY: I know that.

FLENTJE: I do really feel - I do want to...

CANBY: It's a hypothetical question.

FLENTJE: ...Get to one key point.

RICHARD CLIFTON: Well, we'd like to get to an answer to that question.

SIEGEL: That was Judge Canby with the - questioning the government's lawyer August Flentje, who would not say no to that. Let's hear about what the lawyer for the state of Washington said, Carrie.

JOHNSON: Sure. Noah Purcell, the solicitor general for the state of Washington, made a process argument. He said, you know, this case has been moving so fast, Robert. Let's bring it back to the lower court judge in Seattle. We need to develop more of a record here. It's clear, he said, that people in Washington state are facing irreparable harm. And Noah Purcell is here describing some of those harms.

(SOUNDBITE OF ARCHIVED RECORDING)

NOAH PURCELL: We had students and faculty at our state universities who were stranded overseas. We had families that were separated. We had longtime residents who could not travel overseas to visit their families without knowing that they would be able to come back. We have lost tax revenue.

JOHNSON: Yeah, and Purcell also pointed out of course they're making a religious discrimination claim here that the president is favoring Christians over Muslims. Under the First Amendment, that would be a violation of the establishment clause.

SIEGEL: And Noah Purcell, the lawyer for the state of Washington - their solicitor general - ran into some trouble with a Republican appointee on this panel of judges, Judge Richard Clifton.

JOHNSON: Yeah, Judge Clifton said presidents make choices about national origin all the time when it comes to foreign policy. The judge said, we treat North Koreans differently than we do Canadians. And he pointed out that President Ronald Reagan did an executive order on Cubans.

He also pointed out, Robert, this order from President Trump applies to only about 15 percent of the Muslims in the world. And Noah Purcell, the lawyer for Washington state, really struggled with this one. He finally said, Robert, you don't need to discriminate against all Muslims just some of them, just evidence there was some bad intent to win this argument.

SIEGEL: OK, again, this was a hearing on a temporary restraining order. What happens next in this case?

JOHNSON: Well, Judge Michelle Friedland, the Obama appointee on this three-judge panel, said the court would rule as soon as possible, maybe later this week. It could be sent back to the lower court to gather more evidence, or it could go up to the Supreme Court, which may ultimately decide the merits and also this issue of stay or not stay.

SIEGEL: That's NPR's justice correspondent Carrie Johnson. Carrie, thanks.

JOHNSON: You're welcome.

SIEGEL: Stick around. We're going to turn now to Philadelphia and the National Constitution Center where the president of that center, Jeffrey Rosen, joins us. Jeffrey, welcome to the program once again.

JEFFREY ROSEN: Wonderful to be back.

SIEGEL: First, you generally - your general reaction to this hearing.

ROSEN: Well, it was a dramatic hearing and an example of real-time constitutional wonkery (ph). And it was just great to hear the initial questions to Mr. Flentje. And it seemed like all three judges were skeptical of his evidence. Even Judge Clifton, the Bush appointee, said that the risk - the administration's assessment of the risk posed by immigrants was abstract and asked for evidence that the seven countries chosen actually were sources of terrorism. So halfway through the argument, you really might have the sense that all three justices were leaning against the government.

But then when Mr. Purcell got up, Judge Clifton really rallied and said, what is the evidence of actual animus against Muslims? You have to present some evidence; we can't just take your word for it. And then it of course became a question of whether it was fair to admit evidence from outside the record, statements by President Trump on the campaign trail and statements by Rudolph Giuliani, who was called out by name. And finally, even Judge Clifton said, well, that is some evidence. And even newspaper articles have to be taken into account.

SIEGEL: Was Giuliani actually called out by name or just described as an adviser who was so recognizable to all of us that we thought we heard his name? I'm not sure which is the case. But, Jeffrey Rosen, is there some received wisdom about this? Are such things obviously admissible into a hearing on such an order? Or is the law open on that point?

ROSEN: Well, the judges were disagreeing about what the standard should be, whether it was kind of technical, about whether a temporary restraining order should be reviewed immediately or whether the lower court judge should be able to issue a fuller opinion before being reviewed. And both sides sort of expressed impatience that they hadn't had a chance to present evidence, and then both blamed the other for having rushed into court for a quick ruling.

So but essentially, these judges seemed quite willing to delve into the substantive constitutional as well as the statutory arguments. So you didn't have a sense that they were going to punt on procedural grounds. They might well issue some kind of ruling on the merits.

SIEGEL: And to stumble into the procedural weeds that you enjoy so much here, let me ask you. What's the difference between seeing this as an injunction or seeing it as just a temporary restraining order?

ROSEN: Now, I said I enjoyed constitutional law...

SIEGEL: I'm sorry, Jeffery (laughter).

ROSEN: ...Not civil procedure, which (laughter) - it's an entirely different thing. But if I followed it correctly - and my civil procedure is not great - that if it was treated as a mandamus writ against a temporary restraining order, you would refuse to hear it now and would give the lower court a chance to issue a reasoned opinion before doing so.

But Mr. Purcell said it would be bad incentives for district court judges to have their temporary restraining orders received on the merits. They might not want to hear arguments from the other side and therefore basically said, don't penalize this judge for having quickly ruled and asked for a chance to give his reasons later on.

SIEGEL: It seems odd that he didn't want to go back to that court because that judge was awfully good to him on Friday (laughter).

ROSEN: Well, the - Purcell did. And he kept saying to the appellate court, don't issue a full ruling.

SIEGEL: I see.

ROSEN: Deny the writ, and send it back. Let the judge have his hearing. We have a briefing schedule. We're ready to hear this on Friday. He'll issue an opinion quickly. Basically the argument was, give the lower court a chance.

SIEGEL: OK. NPR's Ron Elving, our senior editor and correspondent here in Washington, is also in the studio. Ron, your impressions on this lesson in not only constitutional but also civil procedure?

RON ELVING, BYLINE: It was striking how quickly the presentation by August Flentje was interrupted by Judge Clifton, who of course is the George W. Bush appointee - to say, you know, it's not as though these people who are coming into the country are not being vetted now. And Flentje did not really argue that point. But it seems to me that from a political standpoint, that is very close to being the heart of the matter.

There has been representation made not only in the campaign but since the campaign by President Trump that if we don't have extreme vetting, if we don't have some sort of a ban to sort things out, people are, to quote him, "pouring into the country." And there is not a sense that these people have been in any sense vetted or at least not properly so.

And then not too long after that, Judge Canby - who is the Carter appointee, who's quite a survivor on this court, in his mid-80s, - he said, how many offenses do we have by people from the seven countries covered in this order? And he said, it turns out to be none. And again, Flentje was not really able to contradict that in the record.

SIEGEL: Carrie Johnson...

JOHNSON: Well, in fact, in the hearing last weekend before the judge in Seattle, the Justice Department lawyer could point to no criminal offenses by people from these seven countries. And Flentje went on to say here that there were some convictions of people with ties to Somalia, connections to the terrorist group Al-Shabaab. So he did add to the record here. You're not supposed to do that at this level. You're supposed to put it down in the district court.

SIEGEL: Right. Haven't the cases involving Al-Shabab been about Somali-American boys leaving to go over there, not so much to commit acts of terrorism here in this country?

JOHNSON: In large part, yes. That didn't come out in an argument.

SIEGEL: I'm just curious. Jeffrey Rosen, this is a question that I asked you earlier in the day. Is this ultimately going to be about the merits of what the president wants to do over immigration and whether he has the facts to back it up, or is it about whether anybody can tell the president what he can't do when it comes to national security and the borders?

ROSEN: Well, it was interesting that none of the judges, not even Judge Clifton, most sympathetic to the government, seemed to accept the claim that had been raised below that judges can't review the reasonableness of an order at all, that they have to completely defer on national security. Both sides wanted some evidence in the record either that the affected countries posed a real danger or that there was actual animus against Muslims. In other words, all the judges seemed perfectly willing and able to exercise their duty of constitutional review and to say what the law is.

SIEGEL: By the way, you mentioned it was a good hearing by your standards. Was it an unusual hearing - that is, just going this far on a presidential executive order second week into a presidency?

ROSEN: Well, Robert, as you said, the last time we had these live oral arguments may have been Bush v. Gore when you and I talked live again, and it was just to hear it and the fact that it was a telephone conference. And the whole nation was focused on it, and the appellate court agreed to hear it so quickly. And the stakes were so high with people at airports. It was absolutely unusual and dramatic, and it was really an example of the Constitution at work. The idea that the whole country had to stop for three appellate judges was a beautiful example of the American system in action.

SIEGEL: That's Jeffrey Rosen of the National Constitution Center. Carrie Johnson and Ron Elving, thanks to all of you. Transcript provided by NPR, Copyright NPR.