Appeals judges told travel ban Trump's sphere

States argue order illegal, a hardship for universities

Nazanin Zinouri, 29, is greeted at the Greenville-Spartanburg International Airport in Greer, S.C., with kisses from her dog Dexter and well-wishers holding signs reading "Welcome Home" on Monday, Feb. 6, 2017. Zinouri, an Iranian engineer and Clemson University graduate, had been unable to return to the United States because of the executive order President Donald Trump signed that limited travel to the U.S. from seven Muslim-majority countries. (AP Photo/Alex Sanz)
Nazanin Zinouri, 29, is greeted at the Greenville-Spartanburg International Airport in Greer, S.C., with kisses from her dog Dexter and well-wishers holding signs reading "Welcome Home" on Monday, Feb. 6, 2017. Zinouri, an Iranian engineer and Clemson University graduate, had been unable to return to the United States because of the executive order President Donald Trump signed that limited travel to the U.S. from seven Muslim-majority countries. (AP Photo/Alex Sanz)

SAN FRANCISCO -- A panel of appeals court judges reviewing President Donald Trump's travel ban hammered away Tuesday at the federal government's arguments that the states cannot challenge the order.

The hearing before the San Francisco-based 9th U.S. Circuit Court of Appeals judges was the highest legal challenge yet to the ban, which disrupted travel to the U.S. for more than a week and tested the new administration's use of executive power.

The government asked the court to restore Trump's order, contending that the president alone has the power to decide who can enter or stay in the United States. But several states have fought the ban on travelers from seven predominantly Muslim nations and insisted that it is unconstitutional.

The judges, two Democratic appointees and one Republican appointee, repeatedly questioned Justice Department lawyer August Flentje on why the states should not be able to sue on behalf of their residents or on behalf of their universities, which have complained about students and faculty members getting stranded overseas.

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Flentje argued that the order was "well within the president's power as delegated to him by Congress" and that the president had determined that there was a "real risk" in not pausing travel to the U.S. from those countries.

"Are you arguing, then, that the president's decision in that regard is unreviewable?" Judge Michelle Friedland asked.

Flentje said yes.

Friedland asked whether the government has any evidence connecting the seven predominantly Muslim nations covered by the ban to terrorism.

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Flentje told the judges that the case was moving fast and the government had not yet included evidence to support the ban.

Friedland asked if the government had connected any immigrants from the seven countries to terrorism. Flentje cited a number of Somalis in the U.S. who, he said, have been connected to the al-Shabab terrorist group.

Flentje said the president has broad powers to protect national security and the right to assess risks based on the actions of Congress and his predecessor during the past two years.

The final minutes of the hearing were largely devoted to whether the travel ban was intended to discriminate against Muslims.

Judge Richard Clifton wanted to know how the order could be considered discriminatory if it potentially affected only 15 percent of the world's Muslims, according to his calculations.

In response, Washington state Solicitor General Noah Purcell said it's remarkable to have this much evidence of discriminatory intent this early in the case. He cited Trump's campaign statements about a Muslim ban and public statements by adviser Rudy Giuliani that he was asked to help devise a legal version of the Muslim ban.

A Justice Department lawyer argued that the courts should not question the president's authority over national security on the basis newspaper articles. But under questioning from Clifton, he did not dispute that the campaign statements were made.

Purcell said a previous ruling that halted Trump's executive order has not harmed the U.S. government.

Instead, he told the panel, the order has harmed Washington state residents by splitting up families, holding up students trying to travel for their studies and preventing people from visiting family members abroad.

A decision in the case is likely to come later this week, court spokesman David Madden said. The decision could affect tens of thousands of travelers whose visas were revoked by the initial executive order, then restored after a federal district judge put a nationwide stop to it.

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Whatever the court eventually decides, either side could ask the Supreme Court to intervene.

The case is the State of Washington v. Trump. The three judges hearing the matter via telephone are William Canby Jr., who was appointed by President Jimmy Carter; Clifton, who was appointed by President George W. Bush; and Friedland, who was appointed by President Barack Obama.

The arguments, which lasted about an hour, were conducted over the telephone and were streamed live on the website of the court.

Trump to sheriffs

The broad legal issue is whether Trump acted within his authority in blocking the entry of people from Iraq, Iran, Somalia, Sudan, Libya, Syria and Yemen, or whether his order essentially amounts to a discriminatory ban on Muslims.

The judges must also weigh the harm the ban imposes, and whether it is proper for them to intervene in a national security matter on which the president is viewed as the ultimate authority.

Trump said Tuesday that he cannot believe that his administration has to fight in the courts to uphold his refugee and immigration ban, a policy he says will protect the country.

"And a lot of people agree with us, believe me," Trump said at a roundtable discussion with members of the National Sheriffs' Association. "If those people ever protested, you'd see a real protest. But they want to see our borders secure and our country secure."

Trump said he was prepared to elevate the dispute as needed.

"We're going to take it through the system," Trump said to reporters. "It's very important for the country. ... We'll see what happens. We have a big court case. We're well represented."

The states of Washington and Minnesota, which are challenging the ban, argued in a filing Monday that reinstating the directive would "unleash chaos again" by "separating families, stranding our university students and faculty, and barring travel."

Justice Department lawyers countered that noncitizens outside the United States have "no substantive right or basis for judicial review in the denial of a visa at all." But they also offered a compromise: The lower court judge could have limited his ruling to "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future."

'Pause' called necessary

Testifying before the House Homeland Security Committee, Homeland Security Secretary John Kelly told lawmakers that the order likely should have been delayed at least long enough to brief Congress about it.

He predicted that the administration will prevail in its bid to reinstate the executive order and said judges might be considering the matter from an "academic," rather than a national security, perspective.

"Of course, in their courtrooms, they're protected by people like me," he said.

Kelly adamantly defended the travel ban as a necessary "pause" so officials can improve vetting procedures. He said it is "entirely possible" that dangerous people are now entering the country with the order on hold -- as Trump has said via Twitter -- and that officials might not know about them until it is too late.

"Not until the boom," he said when asked if he could provide evidence of a dangerous person entering the country since the ban was suspended.

Kelly's view was not shared by 10 high-ranking diplomatic and security officials -- among them former secretaries of state John Kerry and Madeleine Albright, former CIA director Leon Panetta, former CIA and National Security Agency director Michael Hayden -- who said in a legal filing that there was "no national security purpose" for a complete barring of people from the seven affected countries.

Kelly also acknowledged Tuesday that if he were given a second chance, he might do things differently in rolling out the order. That stands somewhat in contrast to Trump's recent assertion to Fox News Channel's Bill O'Reilly that the implementation was "very smooth."

"In retrospect, I should have -- this is all on me, by the way -- I should have delayed it just a bit, so that I could talk to members of Congress, particularly the leadership of committees like this, to prepare them for what was coming, although I think most people would agree that this has been a topic of President Trump certainly during his campaign and during the transition process," Kelly said.

Kelly later said, though, that most of the confusion that followed the signing of the order was attributable to court orders and occurred not among Customs and Border Protection officers, but protesters in airports. After people were initially detained and deported, demonstrators packed airports to voice their displeasure, and civil liberties and immigration lawyers filed lawsuits across the country.

Many of those suits remain ongoing, with lawyers keeping a close eye on the proceedings before the 9th Circuit. On Tuesday, a group of lawyers asked a federal judge in New York to force the government to turn over a list of those who had been detained or deported, as the court had previously ordered officials to do.

The government has said no one is being detained and has debated what information it is required to provide.

"Noncompliance of a court order is very serious, especially where people's lives are at stake," said Lee Gelernt, deputy director of the American Civil Liberties Union's Immigrants' Rights Project. "We filed this motion to enforce because the government left us no choice."

Information for this article was contributed by Sudhin Thanawala, Martha Bellisle, Gene Johnson, Matthew Barakat, Michael Rubinkam, Colleen Slevin and Mark Sherman of The Associated Press; by Matt Zapotosky, Robert Barnes and John Wagner of The Washington Post; and by Adam Liptak of The New York Times.

A Section on 02/08/2017








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