What happens next?
The court has not said when it intends to deliver a ruling, only that it will try to do so quickly. That means probably not today, but almost certainly this week.
Here’s what they’ll be considering:
As for what happens after that? Whichever way the judges sway, the legal battle over the travel ban is not over. It could head back to the Washington state district court. It could go to the supreme court. Here’s our guide to the next steps:
The judges said they would try to deliver a ruling as soon as possible, report David Smith in Washington and Julia Carrie Wong in San Francisco:
During a hearing conducted by telephone between various locations, August Flentje, of the Department of Justice, described the ban as putting a “temporary pause” on travelers from countries that “pose special risk”. He said the seven countries targeted had “significant terrorist presence” or were “safe havens for terrorism”.
Trump’s actions were “plainly constitutional”, Flentje argued, as the president sought to strike a balance between welcoming visitors and securing the nation of the risk of terrorism. “The president has struck that balance,” he said. “The district court order upset that balance.”
Flentje argued that the district court restraining order was too broad, giving rights to people “who have never been to the United States” and “really needs to be narrowed”.
Judge Michelle Friedland, who was appointed by Barack Obama, asked: “Are you arguing then that the president’s decision in the regard is unreviewable?”
Flentje replied: “Yes, there are obviously constitutional limitations.”
But Judge William Canby, an appointee of Jimmy Carter, pointed out that people from the seven countries already could not come into the country without a visa and were subject to “the usual investigations”. How many of these people had committed terrorist attacks in the US, he wondered, before pointing out it was none.
Flentje pointed to Congress’s determination that they were countries of concern, an argument that Judge Richard Clifton, an appointee of George W Bush, dismissed as “pretty abstract”.
Read the full report here:
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Whatever the outcome, it’s probably fair to say that this was one of the most closely followed live hearings in the ninth US circuit court of appeals’ history.
Reportedly, 137,000 people followed the live stream of the audio hearing online. Twitter got in on the act too:
#9thCircuit is trending. Which must be a first
— emily bell (@emilybell) February 7, 2017
Could comments made by Rudy Giuliani scupper the government’s case that the court should not “look behind” the travel ban for motivation?
The states argued that behind the executive order was potential religious discrimination.
Giuliani, in an interview with Fox News last month, said:
I’ll tell you the whole history of it. When he 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’ …
And what we did was we focused on, instead of religion, danger … The areas of the world that create danger for us, which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible.
Today in court, those comments were referenced by the judges when questioning DoJ lawyer August Flentje, who had told them:
It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles.
Judge Richard Clifton asked him:
You deny the statements attributed to then candidate Trump and to his political advisers and to most recently Mr Giuliani – do you deny those statements were made? …
Either those kind of statements were made or they’re not.
"Show me the right way to do it legally" - Rudy Giuliani on what #Trump initially labeled #MuslimBan via @FoxNews pic.twitter.com/yJDXzsW2pZ
— Austin Kellerman (@AustinKellerman) January 29, 2017
Updated
States' case: a summary
Noah Purcell, Washington state’s solicitor general, argued the case on behalf of his own state and Minnesota.
- The states say the temporary restraining order (TRO) that blocked the travel ban nationwide should remain in place until a court hears the full appeal. Purcell said the burden was on the government to prove that the TRO should be lifted.
- Purcell said the current hearing was the “wrong remedy” and the government should make its case back in the district court in Washington state.
- He argued that the government had shown no “irreparable harm” from keeping the TRO in place, but that several harms had already been demonstrated in the period the travel ban was in effect:
Families were separated. Longtime residents were unable to travel overseas. There is lost tax revenue.
- The court should “look behind” the executive order for the motivation, Purcell argued, saying it amounted to discrimination on religious grounds.
- Judge Richard Clifton pressed him on this, pointing out that not all Muslims were affected by the block on the seven countries:
My quick pencilling suggests it’s something less than 15%.
- Purcell said the states did not need to prove the travel ban hurts every Muslim, but that the intent behind it was to discriminate against Muslims. The ban, he said:
was done to favour one religious group over another … The president [as a candidate] called for a complete ban on the entry of Muslims.
- He said it was still unclear how many citizens of the two states were directly affected by the travel ban, or whether people from the seven countries on the list who were now lawful residents of the US were or were not restricted by it.
- Purcell insisted the TRO was not too broad and questioned what the government meant when it said it could adopt a narrower implementation of the travel ban:
They have not credibly described how they would be able to do that, even if it would address all of our harms.
Updated
Government case: a summary
August Flentje – a longtime justice department lawyer but apparently last-minute appointment for this hearing – made the case on behalf of the federal government.
- He asked the judges for a stay on the temporary restraining order placed on Trump’s travel ban by district court judge James Robart last week.
- This would reinstate the restrictions on travelers from seven Muslim-majority countries and on refugee entries until a full appeal against the travel ban is heard.
- The district judge was wrong to override the president’s judgment on national security, Flenje argued. Judge Michelle Friedland asked if that meant the president’s decision is not reviewable.
Flentje: Yes.
- Does that mean if the president were to introduce a Muslim ban via executive order on the grounds of national security, that too could not be reviewed, Friedland asked repeatedly.
Flentje: That’s not what the order is.
- He said the executive order was not discriminatory on religious grounds and said the judges should not rely on “newspaper reports” of the alleged motivations behind the travel ban, which he called:
very troubling second-guessing.
- Flentje said the executive order was an “extension” of the visa requirements placed on visitors from the seven countries, which have been determined to pose a risk of terrorism.
- Pressed by Judge William Canby on how many people on those visas had committed terror attacks in the US (Canby then answered his own question: none), Flentje said the legal proceedings were “moving pretty fast”.
- To pushback from the judges, Flentje said the states could not challenge visa denials or revocations as a third party. He said the states lacked “a legally protected interest” in the case.
- Flentje argued that the district court restraining order was too broad, giving rights to people “who have never been to the United States” and “really needs to be narrowed”.
What happens next?
Even if the states lose the appeals court ruling, the case may not head directly to the supreme court. The states may decide to continue litigating the case in the district court, seeking a slightly different type of relief from the restraining order granted by Judge Robart. The states could seek a preliminary injunction, which would also have the effect of suspending Trump’s executive order in the near term.
If the appeals court rules in favor of the states, the justice department may appeal to the supreme court, may hold off on an appeal until the supreme court landscape changes, or may mount a challenge in a different district court, or take as yet unforeseen action.
We won’t know the outcome right away, and trying to predict the ruling is a fool’s errand.
But some observations from legal commentators on how that went:
2) Judge Friedland clearly was sympathetic to the challengers. Judge Clifton mostly sympathetic to the Trump admin.
— Ian Millhiser (@imillhiser) February 8, 2017
2/ though it's always dangerous to infer too much from oral argument
— Laurence Tribe (@tribelaw) February 8, 2017
And anyone listening to today’s argument should not forget: our founders set up 3 branches of govt for exactly this reason. 4/4
— Neal Katyal (@neal_katyal) February 8, 2017
Court adjourned
Judge Friedland says the three judges will endeavour to deliver a ruling as soon as possible but gives no notion of a time or date.
And the court hearing is over.
Flentje says the scope of the restraining order “really needs to be narrowed” to apply only to residents of the states.
But, says Clifton, isn’t it only the president who can amend the executive order? How can the court narrow it? Shouldn’t that be the job of the executive to clarify what it means?
Flentje says the definitive interpretation of the order comes from White House counsel, who speaks for the president:
At most, the injunction should be limited to … previously admitted aliens who are abroad now and wish to return to the US.
(My paraphrasing: he was reading it pretty fast.)
Judge Clifton: do you deny that Trump as a candidate made those statements about a Muslim ban?
Flentje says the ruling shouldn’t depend on newspaper reports.
Clifton says, especially considering the haste of the proceedings, that this is still evidence:
If those statements were made, they were made.
Flentje gets another run – rebuttal and also because Purcell went a little over his alloted time.
He says the document of the executive order itself “is the best evidence of the intent of the president”, which he argues is national security.
He says it is based on “countries of concern”.
Friedland harks back to her earlier question: if the alleged intent were to ban Muslims, is the ban really not subject to review?
That’s not the order we have here, says Flentje, harking back to his earlier answer.
Shouldn’t the case should proceed to discovery to find out if that was the motivation, Friedland asks.
Flentje calls that “very troubling second-guessing” of Trump’s decision.
Purcell:
The court can review this order. The court should review this order.
He says the judges should send the case back to the district court, or otherwise reject it.
And that’s the state’s case done.
The president claims he is acting in accordance with congressional authority, Purcell says:
No, he is acting contrary to what congress has said.
Judge Clifton points out that previous orders have discriminated on the basis of nationality, for example Cubans:
There hasn’t been a challenge to that.
Purcell says such cases were “much narrower”.
Clifton says foreign policy treats people from different countries differently “all the time”.
We treat people from North Korea differently to people from France, the judge says.
Purcell is telling the judges – as Flentje did earlier – that there has not been much time to prepare for these hearings. More evidence will be forthcoming, he adds; there have been no discovery yet.
Purcell says the government has already said it will seek immediate review if it does not win a stay.
Trump earlier on Tuesday threatened to take the fight to the supreme court if the ruling does not go his way:
Hopefully it doesn’t have to. It’s common sense.
Purcell says for the stay to be granted, the department of justice will have to show that it is likely to win the appeal to overturn the temporary restraining order, ie the burden is on them.
Clifton asks for evidence of animus.
Purcell:
The president called for a complete ban on the entry of Muslims.
This is not that ban, he adds, but he says it makes “plausible” the allegation that the travel ban is motivated by religious discrimination.
Friedland comes in: the states have exhibits on this, yes?
MTF: But you've supported your allegations with exhibits, right? (Lifeline there.) #WAvTrump
— Brian Goldman (@briangoldman) February 7, 2017
Clifton persists: does Purcell concede there is concern about these seven countries from a terrorist perspective.
Purcell says the existing visa restrictions is “eminently” different from the travel ban. he does not think the visa restrictions were discriminatory on religious grounds.
But he argues that the motivation behind the travel ban “was done to favour one religious group over another”.
Judge Clifton pushes on the alleged religious discrimination. He says he is not entirely convinced: the seven countries comprise only a small proportion of Muslims worldwide.
My quick pencilling suggests it’s something less than 15%.
Purcell says he has not done that math.
Clifton says the seven countries are linked to terrorism and there could be a religious element to the terrorism (“It’s kind of hard to deny.”).
Purcell says the states do not need to prove the travel ban hurts every Muslim, but that the intent behind it is to discriminate against Muslims.
Purcell alludes to "strong evidence" (i.e. Trump saying he wants Christians) to support that EO favors one religious group over another
— Alan Yuhas (@AlanYuhas) February 7, 2017
Why should the temporary restraining order not limited only to lawful residents already in the US, Judge Clifton asks.
Purcell says the TRO is not too broad. The travel ban is discriminatory, he says, so a narrower restriction would not address all the harms.
The defendants have also not demonstrated how they would implement a narrower ban, he argues.
They have not credibly described how they would be able to do that, even if it would address all of our harms.
What proportion of those affected fall within the category of citizens of Washington state, the judges ask.
Purcell: “We allege there are thousands.”
We know there are roughly half a million lawful residents from those seven countries in the United States, he says.
He says it is still unclear whether those lawful residents are now restricted by the temporary ban.
They're talking about a 1972 SCOTUS case that supports executive power to refuse immigrant entry to US
— Ari Melber (@AriMelber) February 7, 2017
Purcell says that case was different and the current case affects those who do have rights within the US.
He says the court should “look behind” the executive order for the motives behind it.
Wash.: Cases say you can look behind order to find motives where there are allegations of bad faith, which we have here. #WAvTrump
— Brian Goldman (@briangoldman) February 7, 2017
Judge Friedland asks what those “harms” will mean if the court rejects parens patriae, ie the idea that the state can act on behalf of those affected by the travel ban.
Purcell says the broader harms would still be relevant to the public interest:
It affects everyone, in effect.
He says the states have a strong chance of success.
Purcell moves on. The federal government has shown no irreparable harm would come from blocking the travel ban, he says.
Asked what irreparable harm comes from implementing the ban, Purcell cites:
Families were separated. Longtime residents were unable to travel overseas. There is lost tax revenue.
Updated
Purcell says the district court ruling was “clearly intended” to be a temporary injunction. The case should go back to that court, he says.
He says this appeal by the DoJ is taking up time that could be better spent on preparing for the full appeal against the travel ban, rather than for a stay on a restraining order that was only ever going to be short-term.
States make their case
Noah Purcell is now up, on behalf of the states of Washington and Minnesota.
He says the court should reject the DoJ case.
The defendants have pursued the wrong remedy by coming to this court, he says.
Why should we care, Judge Clifton asks. Is there only one form of relief available? He says it’s hard to see why the judges should not look at this case.
Purcell says this is not what he’s arguing.
Updated
Flentje persists: the district court order is too broad, giving rights to people “who have never been to the United States”.
He asks that the judges “immediately stay” the portion of the injunction that relates to people outside the US.
And he’s done.
Flentje argues that the district court order is too “broad” and there should be a stay, even if some elements of the executive order are “problematic”.
He says the injunction that blocked the travel ban nationwide went further than the states’ arguments.
Judge Canby asks if the president could simply say: “I’m not going to let any Muslims in”?
Flentje says that’s not what the order is.
I know that, Canby tells him. But, the judges ask, if such an order is not reviewable, isn’t it possible that a president could make such an order?
Flentje repeats: that’s not what the order is.
Updated
The judges cite several examples in which states have been able to act on behalf of their citizens, while not being directly affected.
There are a lot of pauses from Flentje.
States would have interests in, say, students in their schools, he says. That’s not so for aliens.
What about college students, Judge Friedland asks: states are affected by their students being unable to return.
It’s not an order that discriminates on the basis of religion, Flentje insists.
Updated
From the national legal director of ACLU:
9th Cir. argt. Ct: Why can't state sue on behalf of its citizens? Govt: long silence
— David Cole (@DavidColeACLU) February 7, 2017
The state doesn’t have the constitutional right to challenge the ban, Flentje argues.
Judge Clifton cites a case in which the wife of a man refused entry was able to make a case.
You have to look at the right of the state, Flentje says. It is a third party here.
Our claim is that it doesn’t have … a legally protected interest.
A state acts for its citizens, Judge Canby says, citing examples of clean air cases.
Flentje says a third party cannot challenge visa denials or revocations.
Sure they can, says Judge Clifton.
Flentje goes on:
Exclusion of aliens is a fundamental act of sovereignty … within the powers of congress and the president.
He says there is limited constitutional power to review the president’s decision.
Judge Friedland points out there have been allegations of bad faith.
Some commentary from ACLU:
A president cannot have unchecked power. This is why we have checks and balances. https://t.co/rAB5I0CBOk
— ACLU National (@ACLU) February 7, 2017
Flentje cites al-Shabaab, a terror group working out of Somalia.
He concedes this is not in the record.
He says they are seeking an immediate stay because the district judge overrode the president’s judgment on national security.
Judge Friedland asks if in that case he is saying the president’s decision is not reviewable.
Flentje:
Yes.
Updated
Judge Clifton asks whether circumstances have changed – would there be a real risk if existing restrictions were not extended?
The president determined there was a real risk, Flentje says.
Judge Canby points out that people from the seven countries already could not come into the country without a visa and were subject to “the usual investigations”.
How many federal offences have been committed by people who came in from these countries on visas, Canby asks. There haven’t been any, he points out.
These proceedings are moving pretty fast, Flentje says.
Flentje says the district judge’s order “upset the balance”:
This is a traditional national security announcement … the court’s order immediately altered that.
“Numerous foreign-born individuals” have been implicated in or convicted of crimes post-9/11, he argues.
Judge Friedland asks if there is any evidence connecting these countries with terrorism.
Flentje says the pre-existing visa waiver scheme relied on evidence that:
These seven countries posed the greatest risk of terrorism.
The executive order is an extension of that, he says.
Judge Canby intervenes: he clarifies what the justice department is asking for.
Flentje clarifies that the justice department is seeking a stay on the district judge order that halted the travel ban, pending fuller consideration from the court on the appeal itself.
August Flentje begins. He describes the ban as putting a “temporary pause” on travelers from countries that “pose special risk”.
He says the seven countries targeted have “significant terrorist presence” or are “safe havens for terrorism”.
He says the president has the authority to suspend entry to “aliens” in the interests of national security:
That’s what the president did here … plainly constitutional.
Hearing begins
The hearing is being conducted over the phone.
The judges are Michelle Friedland, who presides, William Canby and Richard Clifton.
Noah Purcell, solicitor general of Washington, is making the case for the two states.
August Flentje represents the justice department and he goes first.
Who is against the ban?
Formally, the arguments against the executive order will be made today by the attorney general of Washington state and the attorney general of Maryland.
In its original filing against the ban, Washington state argued:
The order is tearing Washington families apart. Husbands are separated from wives, brothers are separated from sisters, and parents are separated from their children.
The states say the ban bucks guarantees against discrimination in the Immigration and Nationality Act and the US constitution; and that it violates the constitutional separation of church and state and the constitutional guarantee of due process before the law.
Almost 100 technology companies have filed an amicus brief supporting the states.
How did we get here?
Trump issued an executive order on 27 January, suspending refugee admissions and banning travel from Iran, Iraq, Syria, Libya, Somalia, Sudan and Yemen for 90 days. The order immediately came under legal attack from plaintiffs on all sides – travelers caught up in the ban, civil rights groups, and states arguing that irreparable harm had been done to residents.
The cases produced multiple rulings, for and against the various plaintiffs. The broadest relief of all was granted by district judge James Robart, in Seattle, last Friday. Robart, in a ruling that did not explain his deliberations, granted a request for a nationwide order restraining the federal government from enforcing the key planks of Trump’s order.
The ruling set up a major fight, which will play out in the coming hour or so.
Over the weekend, the justice department asked for an emergency hold on the Seattle ruling, which was denied, making the case a focus of national attention.
The restraining order issued by the district court judge applies to five sections of Trump’s executive order. Together these sections comprise the most controversial parts of the order. Sequentially, they instruct officials to:
- Suspend entry to the US, as immigrants and nonimmigrants, of people from seven Muslim-majority countries for 90 days, excluding foreign nationals traveling on diplomatic visas and certain other specialty visas.
- Suspend the US refugee admissions program for 120 days.
- Prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.
- Suspend the admission of Syrian refugees specifically.
- Admit individuals to the US as refugees on a case-by-case basis.
Today justice department lawyers will argue that these should be reinstated.
The court hearing is due to start shortly. Will we get a ruling today? Probably not.
David Madden, a spokesman for the court, said a ruling would be more likely to come later this week.
Proceedings today are due to last around 60 minutes, with each side – the justice department for the ban, and the states of Washington and Minnesota against – granted 30 minutes of argument over the telephone.
It could run longer depending on questioning by the judges.
Welcome to live coverage of the hearing to determine whether President Donald Trump’s travel ban will – for now, at least – stand or fall.
The ninth US circuit court of appeals in San Francisco, a federal court, will shortly hear arguments from the justice department arguing that the executive order – which barred all visitors from seven Muslim-majority countries from entering the US for 90 days, and suspended Syrian refugee entry indefinitely and all others for 120 days – should be reinstated.
On Friday, district judge James Robart put a temporary, but nationwide, halt to the order, after hearing arguments from Washington state and Minnesota against the ban. The attorney general for each of those states will once again make their case in the hearing that is due to start imminently.
We will have live coverage here.
