SAN FRANCISCO (CN) – A three-judge panel of the Ninth Circuit on Tuesday appeared unmoved by the Trump administration's request to reinstate the travel ban, but at least one judge expressed skepticism that discrimination against Muslims motivated the president’s controversial executive order.
Circuit Judges Michelle Friedland, William Canby Jr. and Richard Clifton badgered August Flentje, Special Counsel for the U.S. Attorney General's office, during the one-hour hearing that focused on whether the panel should overturn the temporary restraining order placed on President Donald Trump's controversial travel ban by U.S. District Judge James Robart this past Friday.
At one point, Flentje conceded the judges appeared unpersuaded by his argument.
"I am not sure I am convincing the court so I'd like to make one last point," he said after a round of aggressive questioning by all three judges.
The Trump administration's position during the hearing hewed closely to the legal arguments they have made since Washington state Attorney General Eric Ferguson sued to block the travel ban last week.
First, the president has broad discretion when it comes to the nexus of national security and admittance of noncitizens into the United States. Second, Washington state does not have standing because there is no harm to it specifically, and even if there is a harm the restraining order in place is overbroad, government lawyers argue.
Friedland pointedly asked Flentje at one point if "a president's decision in this regard is essentially unreviewable” – essentially asking the attorney to acknowledge there have been instances where courts have reviewed a president's decisions regarding national security.
Flentje conceded courts had recourse to "limited review," but argued the executive order as signed by Trump did not warrant such review. When asked what type of review was appropriate in the government's opinion, Flentje pivoted to the matter of standing.
However, he did not make much progress on that front.
The judges seemed to accept Washington state’s argument that the travel ban's detrimental effect on its university systems, in terms of the inability of their faculty and students to travel back and forth freely from the seven affected Muslim-majority nations, constituted a proprietary interest sufficient to grant standing.
But the panel seemed less convinced that the state could sue on behalf of its citizens affected by the ban in this particular instance, though it noted cases where U.S. citizens have sued the government over immigration on behalf of noncitizens due to their own harm under the Constitution.
The judges demanded why the government thought those instances were different.
"The state doesn't have the same constitutional rights a wife does," Flentje said.
But Clifton asked about another case where a school sued on behalf of its scholars, a line of questioning Flentje struggled to parry.
Furthermore, all three judges entertained the state's argument that Trump's campaign statements about how he would seek to block entry into the United States by all Muslims – and recent comments by White House cybersecurity adviser Rudy Giuliani on Fox News that the president had asked him how to make a Muslim ban that was legal – constituted enough evidence to move forward with a case exploring whether there was discriminatory intent in the travel ban.