In an unusual set of oral arguments by conference call late Tuesday, a three-judge panel of the Ninth Circuit Court of Appeals heard and questioned attorneys for the federal government and for the States of Washington and Minnesota over the government’s plea to set aside a district judge’s temporary restraining order against the Trump administration’s travel ban.

The government had the burden of convincing the judges that letting the TRO remain in place while the district court heard the case would represent “irreparable harm” to the national interest and would also interfere with the president’s exercise of congressionally delegated authority over immigration law. The Justice Department’s August Fientje heavily emphasized that authority in his argument, and the more specific congressional warrant for looking closely at the seven countries-of-origin that are the focus of the travel ban.

Fientje’s argument that the states involved did not have proper standing to bring the suit—particularly with respect to refugees and visa applicants who had never been in the U.S. (the major groups affected by the ban after it was relaxed to exclude those with permanent residence status)—drew much skeptical questioning from the judges, to the exclusion of the merits of the case. Washington State Solicitor General Noah Purcell ran into trouble with at least one of the judges—Richard Clifton, a George W. Bush appointee to the 9th circuit—for assertions that a ban affecting a relatively small percentage of Muslims overseas was necessarily religiously motivated.

But that same judge upbraided Fientje for suggesting that evidence of an intent to impose a travel ban on Muslims by the president and at least one advisor was just “newspaper articles.”

Both lawyers sought to encourage the judges on the 9th circuit panel — Michelle Friedland, an Obama appointee, William Canby, a Jimmy Carter appointee, and Clifton — to tailor a ruling in a way that gave its side the advantage in what happens next. Purcell sought a ruling that would let district court judge James Robart proceed with a hearing on the travel ban without the government interfering via an immediate appeal to the Supreme Court, which the government will most definitely try to pursue if the appeal court denies its petition for a stay of the temporary restraining order, or TRO. Fientje repeatedly asked that even if the judges thought the states had standing to bring suit on behalf of actual residents, they should knock out the TRO for people who had not been in the U.S.

The New York Times’ Charlie Savage probably spoke for most listeners in making a perilous tentative prediction based on the oral arguments:

But all that would mean is that the case would for an instant at least proceed at the district court level, even as Trump’s lawyers sought to drag SCOTUS in to stop it and (at least temporarily) restore the travel ban.

It’s unclear when the 9th circuit panel will make its ruling — though some time this week is a good guess. It would be wise to take any cheers and jeers for whatever it does with a shaker of salt. This case probably has a long way to go in the courts, and both sides will obviously keep trying to score points in the court of public opinion as well.</s>SAN FRANCISCO (CBS SF) — Judges on a federal appeals court panel appeared skeptical Tuesday about whether they should reinstate President Donald Trump’s ban on entry to the United States by citizens of seven predominantly Muslim countries.

“Has the government pointed to any evidence connecting these countries with terrorism?” Judge Michelle Friedland asked U.S. Justice Department attorney August Flentje.

The Trump administration is asking the 9th U.S. Circuit Court of Appeals for an emergency stay of a temporary restraining order in which a federal trial judge in Seattle on Friday blocked implementation of the ban.

A three-judge panel of the San Francisco-based circuit court took the appeal under submission after hearing an hour of arguments by telephone.

Friedland said the panel will hand down its written ruling as quickly as possible. Court spokesman David Madden said the decision is expected this week.

The circuit court’s decision is likely to be appealed by whichever side loses to the U.S. Supreme Court, which currently has a 4-4 split of conservative and liberal justices.

The ban, issued by Trump in an executive order on Jan. 27, would bar visitors and refugees from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days.

It would stop refugees from all countries for 120 days and exclude Syrian refugees indefinitely.

Flentje told the panel that the ban was a “brief pause” to enable administration officials to review and if necessary improve security procedures.

He argued the measure was “well within the president’s power” to determine national security risks and set protections against them.

U.S. District Judge James Robart issued the temporary restraining order in a lawsuit filed by Washington state and Minnesota.

The two states, supported in “friend-of-the court” briefs by 18 other states including California, say the ban “unleashed chaos” and would hurt the states’ residents, universities, medical institutions and economies.

They contend it denies due process and equal treatment to the people affected and discriminates against Muslims.

 Flentje answered Friedland’s question about a terrorism connection by noting that Congress and President Obama in 2015 and 2016 said there should be extra scrutiny before visitors from the seven countries are given

 visas.

But Judges William Canby and Richard Clifton then asked whether that extra scrutiny provides the protection needed.

“Is there any reason for us to think there is a real risk if the existing procedures are allowed to stay in place while the procedures are revised?” Clifton asked.

All three judges asked questions about whether Trump’s order, which does not mention Islam by name, discriminated against Muslims and what proof should be needed.

Washington state Solicitor General Noah Purcell said the court could look at Trump’s campaign vow to ban all Muslims as evidence of discriminatory intent.

“We’ve alleged very plausibly with great detail that this was done with the intent to favor one religious group over another,” he told the panel.

Clifton noted that the seven countries contain only about 15 percent of the world’s Muslims and said, “The vast majority of Muslims are unaffected.”

Purcell contended, however, that the executive order could be found discriminatory if it targets some Muslims on the basis of religion, even if it doesn’t affect all Muslims.

If the temporary restraining order is left in place by the 9th Circuit and the Supreme Court, the case would go back to the federal district court in Seattle for a hearing on whether Robart should grant a preliminary injunction.

Robart has ordered final briefs on the issue to be submitted by Feb. 17 and has indicated he would hold an injunction hearing soon.

© Copyright 2017 by CBS San Francisco and Bay City News Service. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.</s>Three judges on the U.S. Court of Appeals for the Ninth Circuit heard arguments on whether to grant an emergency stay of a district judge’s issuance of a temporary restraining order (TRO) blocking President Trump’s Executive Order (EO) 13769.

District Judge James Robart issued a shockingly broad nationwide TRO blocking EO 13769, in an order that contained almost no legal reasoning that could be reviewed by other courts.

Judges Michelle Friedland (an Obama appointee), William Canby (Carter), and Richard Clifton (George W. Bush) heard arguments on the emergency motion.

Representing the Trump administration, August Flentje from the U.S. Department of Justice (DOJ) asserted that the EO was rooted in an assessment of risk in which the government balances welcoming foreigners with protecting the physical safety of American citizens. It is a “national security judgment entrusted to the political branches of government,” Flentje said.

DOJ added that the EO was “a short halt” of immigration from certain parts of the world for approximately 90 days to give the new administration time to do its own comprehensive risk assessment and adopt new vetting procedures for foreigners entering the United States.

Flentje continued to raise the point that the plaintiffs in this case lack standing, and thus that the lawsuit should have been dismissed for lack of jurisdiction. But the liberal-leaning panel seemed not to focus on this bedrock constitutional principle that limits the power of unelected judges in America’s democratic republic, looking instead to the legal merits of the case.

On the merits, DOJ pointed out that Congress has authority to exclude any aliens it wants, and in Section 212(f) of the Immigration and Nationality Act delegated absolute discretion to the president on that score, empowering the president to exclude any alien or class of aliens if their admission into the country would,in the president’s judgment, be “detrimental to the interests of the United States.”

A majority of the three-judge panel seemed hostile to that position. “What are the constitutional limitations that the government acknowledges?,” asked Friedland, implying that she believed there are such limits.

Judge Clifton pushed back on the plaintiffs’ argument that this EO is a ban on Muslims. “I’m not entirely persuaded,” he began, noting that “the seven countries [covered by the EO] encompass only a relatively small percentage of Muslims.”

Clifton also faulted the plaintiff states from making bare allegations of anti-Muslim motivation without evidence. “I don’t think allegations cut it at this stage,” he added.

Clifton rejected out of hand the idea that a president cannot make foreign policy assessments based on nationality. “Foreign affairs do all the time,” he insisted, noting that we have a policy for immigrants from Cuba that is unique to Cuba, yet no one claims the policy is unconstitutional.

But the panel seemed inclined to a more liberal outcome. Or they could simply hold that an appellate court lacks jurisdiction to review a TRO, and thus must wait another week or two for a preliminary injunction from the trial court before exercising appellate jurisdiction.

After that, the Trump administration must decide whether to ask the Supreme Court to intervene.

A decision is expected in the next few days. The case is Washington v. Trump, No. 17-35105 at the Ninth Circuit.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.</s>The Eighth Circuit Court of Appeals, which covers Iowa and six other Midwestern states, will soon be the most "lopsided" federal appeals court in terms of the number of judges appointed by a single party.

As Rox Laird writes in the Iowa appellate court blog "On Brief", due to several retirements, President Donald Trump is expected to appoint three new judges to the Eight Circuit’s bench. This means only one of the court’s eleven judges won’t be a Republican appointee.

Though the court will almost completely comprise GOP appointees, this probably won’t affect the outcomes of most cases coming before the Eighth Circuit.

"Circuit courts generally are not carving out new constitutional rights," Laird says. "They have to ground their decisions in what the U.S. Supreme Courts says."

Additionally, because senators sign off on circuit court nominees from their own states, this also provides some ideological balance. For example, one of the Eight Circuit's vacancies is from Minnesota, and it's unlikely that state's two Democratic senators will approve a conservative in the mold of former Supreme Court Justice Antonin Scalia.

But if the composition of the Eighth Circuit does lead to more distinctly ideological decisions, that means there may be more cases from Iowa (or Arkansas, the Dakotas, Minnesota, Missouri, or Nebraska) headed for the U.S. Supreme Court.

"For example, the Ninth Circuit might come to a decision one way, and the Eighth Circuit go the opposite way...the U.S. Supreme Court then takes that case up." says attorney Ryan Koopmans, who also writes for "On Brief" and has argued before the Eighth Circuit. "So when have these circuits that might come out differently, really perhaps what we just get is more U.S. Supreme Court cases. Which is not necessarily a bad thing."

One of the vacancies includes the Eighth Circuit's current chief judge, who plans to take senior status in June. Laird notes that Judge Lavenski Smith of Arkansas will take his place, making him the first African-American judge to serve as chief for the Eighth Circuit.</s>7:08 p.m. ET The hearing has concluded, with Friedland noting the court will work to deliver its decision quickly.

7:05 p.m. ET The judges came back to the hypothetical question of if this executive order had been a ban on all Muslims, with Judge Friedland posing that question again to Flentje.

“If there were an executive order that prevented the entry of Muslims, that -- there would be people with standing to challenge that and I think that would raise Establishment Clause, First Amendment issues,” Flentje replied. “But that’s not the order we have here. This order is limited to the countries defined by Congress.”

The three judges on the 9th Circuit Court of Appeals hearing for President Trump’s travel ban on Feb. 7, 2017. CBS News

Asked, though, about the publicly acknowledged quotes in which Mr. Trump and his advisers have discussed plans for a Muslim ban, Flentje said the court shouldn’t be making its decision based on those public statements.

“It’s extraordinary for the courts to enjoin a president’s national security decision-making based on some newspaper articles,” he said. “And that’s what has happened here.”

Judge Clifton pushed back, saying he understands the argument that those public statements “shouldn’t be given much weight,” but said, “If they were made, it is potential evidence, it is a basis for argument.”

7:00 p.m. ET Purcell has finished his oral arguments. The judges gave Flentje five minutes for his rebuttal.

6:58 p.m. ET One judge noted to Purcell that past presidential orders have limited immigration from specific countries before, and asked him why this executive order should be considered differently when having nationality-specific requirements “seems to be commonplace in foreign affairs.”

“Every one of those examples involved much more narrow tailoring than we have here,” he replied.

Immigration order faces major legal test

6:50 p.m. ET The judges noted that Muslims from the seven affected countries only constitute a fraction of Muslims worldwide, asking Purcell whether there is a reason for the travel ban besides religion.

“Do you deny that there is concern about people coming from those countries separate and apart from what their religion might be?” Judge Clifton asked.

Purcell said it can be inferred from “intent evidence,” given Mr. Trump’s past calls for a ban on all Muslims entering the U.S.

“In part you can infer it from intent evidence,” he said. “There are statements that we’ve quoted in our complaint that are rather shocking evidence.”

Judge Canby noted there’s a difference between allegations and definitive proof. “Do I have to believe everything you allege?” he asked Purcell.

Purcell replied, “We’ve presented an enormous amount of evidence.”

6:47 p.m. ET The judges asked Purcell why the order isn’t, as the government side argued, overbroad -- and why it shouldn’t only apply to people who reside in the U.S. or are connected to the U.S. in some way, rather than all people entering the U.S. from the seven affected countries.

“Limiting the order in that way would not address all the harms the order is causing,” Purcell replied.

6:43 p.m. ET Purcell, who is getting fewer questions from the judges than Flentje thus far, argued that the Trump administration has not adequately shown what “irreparable harm” would result from keeping the travel ban on hold.

The government side has made “no clear factual claim or evidentiary claims from what that irreparable harm would be” he said, adding: “It was the executive order itself that caused irreparable harm.”

6:32 p.m. ET Next up is the lawyer for Washington and Minnesota, Noah Purcell.

Purcell argued that the judicial branch has “always” had the role of saying what the law is and curbing “abuses by the executive branch” -- and said that role has “never been more important in recent memory than it is today.”

Reinstating the travel ban would “throw this country back into chaos,” he said, and the court “should decline that.”

6:29 p.m. ET Flentje moved on to his next point, saying, “I’m not sure I’m convincing the court.”

He argued that the lawsuit against the executive order is “overbroad,” and said the court should immediately place a stay on the injunction, “even if the court thinks some aspects of the order are problematic.”

6:27 p.m. ET The judges are now asking Flentje a hypothetical question: what if this travel ban were a ban on Muslims, as Mr. Trump had initially asked for?

“Could the president simply say in the order, ‘We’re not going to let any Muslims in?”

“That’s not what the order does here,” Flentje replied.

Canby asked the same question several more times, but each time Flentje said, “That’s not what the order does.”

6:20 p.m. ET The discussion has now moved on to whether the states bringing the suit, Washington and Minnesota, have legal standing to challenge the executive order. Flentje, the Justice Department’s lawyer, says they do not have the standing to bring a lawsuit on behalf of state residents.

6:12 p.m. ET The judges on the panel are questioning Flentje about what evidence the Trump administration has to back up its claim that the travel ban was necessary to prevent real “risks” to the country.

Flentje named one example, saying there are “a number of people” from Somalia tied to the terror group al-Shabaab who have been arrested in the U.S., but did not present other examples or evidence. He said the “quite fast” pace of this legal process has kept him from bringing other evidence tonight.

“These proceedings have been moving quite fast and we’re doing the best we can,” he said.

“Why should we be hearing this now if it sounds like you’re trying to say you’re going to present other evidence later?” Circuit Judge Michelle Friedland responded.

6:07 p.m. ET Flentje argues that the executive order is constitutional because Congress gives the president authority to deny entry to the country to individuals when there’s a concern they could be harmful to the country.

“This judgment was well within the president’s power as delegated to him by Congress and it is constitutional as the court in Boston … recently held,” Flentje said, adding that Congress has “expressly authorized” the president to suspend entry for individuals who may be “detrimental to the interests of the United States.”

“That’s what the president did here,” he said.

6:02 p.m. ET Arguments are now underway, with August Flentje arguing on behalf of the Trump administration.

5:50 p.m. ET Since President Trump signed his “extreme vetting” executive order banning travel to the U.S. by individuals from seven countries, the measure has faced a number of legal challenges -- and the process continues tonight with a hearing in the 9th Circuit Court of Appeals.

A three-judge panel will hear oral arguments by phone -- 30 minutes for each side at 6 p.m. ET, and the court is reportedly live streaming the arguments on its website. The court in this case is not ruling on the merits of the travel ban, only on the Seattle judge’s nationwide injunction which remains in effect.

A ruling is not expected Tuesday evening but could be handed down this week.

The order, signed on Jan. 27, has not been in effect since Feb. 3, when a federal judge in Seattle imposed a temporary restraining order, and it may well remain halted for the next few weeks -- at least.

The latest halt on Mr. Trump’s ban came when U.S. District Court Judge James Robart, a George W. Bush appointee, issued a temporary restraining order blocking the travel ban’s implementation “on a nationwide basis.” Washington state, Minnesota and Hawaii argue that the temporary restraining order, which blocks the travel ban, should remain in place.

This has the effect of nullifying Mr. Trump’s executive order. In essence, for now, it’s as if Mr. Trump’s “extreme vetting” executive order had never been written. The restraining order should last 14 days unless it’s overturned on appeal.

The Justice Department then appealed, filing a brief with the 9th Circuit Court of Appeals that argued that the president alone has the right to determine who should be allowed to enter the country and who should not. The 9th Circuit denied the Trump administration’s attempt to immediately reinstate the ban, and asked for briefs from Washington state, Minnesota and the Justice Department.</s>A federal appeals court heard argument on a request from President Donald Trump’s administration to stay a temporary restraining order against the “extreme vetting” executive order commonly known as the Muslim ban.

Justice Department attorney August E. Flentje was asked multiple times to produce evidence for why the stay was needed to prevent irreparable harm. He was able to provide zero factual claims, and that seemed to fluster the Ninth Circuit Court of Appeals judges.

“These proceedings are moving real fast,” Flentje declared, when he was unable to come up with a satisfactory answer that would prove the executive order was needed to keep the United States safe. He later added with little specificity that there were Somalis connected to the terrorist group, al Shabaab. There are “other individuals,” who pose a threat but those people are not in the record.

When Flentje complained about proceedings moving too quickly, Judge Michelle Friedland pointed out that it was the government that filed an emergency motion. They sped up the process without waiting for a lower court to rule on the merits of a case brought by the states of Washington and Minnesota.

“Are you arguing that the president’s decision is unreviewable?” Friedland asked. To that, Flentje said the appeals court should only look at U.S. citizens’ claims.

The Justice Department attorney did not believe the courts should weigh allegations of bad faith on the part of the president and his staff of advisors. He suggested the case be “confined to the four corners of the document.” But the judges did not seem to fully buy that because the states have public statements suggesting the officials had an intent to target Muslims with an order that they crafted and gave a legal veneer.

Judge William Canby bluntly asked what would happen if Trump said, “We’re not going to let any Muslims in.” Canby wondered if the president could do that and whether anyone would be able to challenge that action. Flentje was pressed into answering and said someone impacted by that ban would be able to file a complaint in court.

“I’m not sure I’m convincing the court,” Flentje said. He shifted slightly to argue the states’ claims were “overbroad.”

Noah Purcell, the solicitor general for the state of Washington, focused on the argument that Trump would like the judicial branch to shirk its duty as a check on the executive branch and reinstate the executive order. This would throw the country back into chaos, as was on display when the order was first signed.

Judge Richard Clifton challenged Purcell over whether the states had any evidence of religious discrimination. He noted the order only applies to seven Muslim-majority countries, a small percentage of Muslims in the world. Purcell insisted the states only had to prove the executive order was motivated in part by a desire to harm Muslims.

The states have had no opportunity to collect discovery evidence yet. What they have primarily to rely upon, when making arguments, are statements made by Trump and advisors like former New York City Mayor Rudy Giuliani.

Whether President Trump has the authority to single out individual countries and prevent those citizens from coming to the U.S. was raised by Clifton. Purcell appeared to contend those instances were much more focused and better tailored for security than what the Trump administration has conceived.

Friedland later asked the Justice Department attorney why the case should not proceed to discovery to determine whether the Trump administration had some intent to harm Muslims. While Flentje did not say the states should not be allowed to do that, he argued, “It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles, and that’s what has happened here. That is very troubling second-guessing of the national security decision made by the president.”

The appeals court did not indicate when they would make a decision on whether to nullify the stay and reinstate the executive order.

On February 4, the administration filed an emergency motion with the appeals court after U.S. District Judge James Robart ruled against the administration and issued a broad temporary restraining order that led the Homeland Security Department and State Department to pause their enforcement of the ban. That made it possible for non-U.S. citizens with visas and refugees, who had gone through vetting processes, to travel to the U.S., as they were able to do before Trump’s order.

The Trump administration maintained [PDF] the temporary restraining order “contravenes the constitutional separation of powers, harms the public by thwarting enforcement of an executive order issued by the nation’s elected representative responsible for immigration matters and foreign affairs, and second-guesses the president’s national security judgment about the quantum of risk posed by the admiration of certain classes of aliens and the best means of minimizing that risk.”

The states of Washington and Minnesota, which brought the complaint against the ban, responded [PDF] by accusing Trump of “unleashing chaos” when he signed the executive order and urging the court not to “unleash chaos again by staying the district court order.” They called the appeal by the administration “improper.”

The Trump administration replied [PDF] by asserting the district court erred in entering the injunction. It was a “vastly overbroad” injunction that extended “far beyond the state’s legal claims to encompass numerous applications of the order that the state does not even attempt to argue are unlawful.” It insisted the states do not have standing or the right to seek judicial review.

Ninety-seven companies, including Apple, Facebook, Google, Microsoft, Netflix, Twitter, and Uber, backed the complaint challenging the Muslim ban. Sixteen US attorney generals backed the challenge, and so did several former top national security officials from the military and CIA.</s>Three judges from the United States Court of Appeals for the 9th Circuit grilled lawyers for the Department of Justice and the state of Washington Tuesday in an extraordinary hearing over President Donald Trump's executive order temporarily banning immigrants from seven majority-Muslim countries.

The case before the court centers on the Trump administration's appeal of a nationwide temporary restraining order put in place last Friday by U.S. District Court Judge James Robart in Seattle. The executive order also placed a hold on worldwide refugee admissions and indefinitely blocked Syrian refugees from entering the U.S.

The administration asserts that the restraining order is "vastly overbroad" and an improper judicial encroachment on the authority of the president.

Thousands of people tuned in to listen to an audio-only live stream of the hearing. The judges have indicated that a ruling could come as soon as today.

Arguing for DOJ was August Flentje, special counsel to the assistant attorney general, Civil Division. Washington state's solicitor general, Noah Purcell, presented the case for the states of Washington and Minnesota. Nearly 100 technology companies, as well as numerous civil rights groups and lawyers, filed amicus briefs with the court in support of Washington state.

The three judges who heard the case via telephonic conference were: Circuit Judge Michelle Friedland in San Jose, (appointed by President Barack Obama), who presided over the hearing; Senior Circuit Judge William C. Canby in Phoenix (appointed by President Jimmy Carter); and Senior Circuit Judge Richard Clifton in Honolulu (appointed by President George W. Bush).

Here were the key moments from the hearing:

1. Judges Ask for Evidence to Support the Travel Ban

Arguing for the federal government that the president's executive order was "well within the president's power as delegated to him by Congress," Flentje soon found himself on the defensive as Judge Friedland pressed for evidence the government relied on in determining the risks posed by immigrants from the seven majority-Muslim countries affected by the executive order.

"Has the government pointed to any evidence connecting these countries with terrorism?" Friedland asked.

"These proceedings have been moving very fast," Flentje replied, before citing decisions made during the Obama administration to restrict nationals of the seven countries from eligibility in a visa waiver program. "And that is, I think, the strongest type of reliance, where the president is relying on Congress's determination that these are countries of concern."

Chiming in, Judge Canby pointed out that during last week's hearing in Seattle, the federal government's lawyer was unable to provide any examples of federal crimes committed in the U.S. by visa holders from the seven countries.

"Yes, your honor," Flentje answered. "These proceedings have been moving quite fast and we're doing the best we can," he added, before citing an example of people from Somalia who were convicted in the United States of supporting Somali-based terror group Al-Shabaab.

"Is that in the record?" Friedland asked. "Can you point us to where in the record you are referring"

"It is not in the record," Flentje conceded.

Purcell, the Washington solicitor general, argued that "shocking evidence" of President Trump's "intent to discriminate against Muslims" is proof that the travel ban is unconstitutional because it was allegedly motivated by religious discrimination.

But Purcell was repeatedly challenged on that assertion by Judge Clifton, who pointed out that the executive order affects only a small percentage of Muslims worldwide.

"I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected," Clifton said. "And where the concern for those connected with radical Islamic sects is kind of hard to deny."

"We're not saying that this is a complete ban on Muslims entering the country," Purcell said, referring to the broad exclusionary policy once promoted by Trump early in the presidential campaign.

"[But] we do not need to prove that this order harms only Muslims or that it harms every Muslim," he continued. "We just need to prove that it was motivated by a desire to harm Muslims."

3. Judges Ask Whether the President Could Legally Ban All Muslims

Flentje was repeatedly asked by the judges if the president could explicitly ban all Muslims from entering the country without review by the judicial branch.

"Could the president say in the order, 'We're not going to let any Muslims in'?" Canby asked.

"That's not what the order does here," Flentje replied, avoiding a direct response.

"I know, I know," Canby said. "Could he do that?"

"That's not what the order does," Flentje answered twice more.

As the hearing drew to a close, Flentje conceded that "if there were an executive order that prevented the entry of Muslims, there would be people with standing to challenge that," he said. "But that's not the order we have here. The order is limited to the countries defined by Congress."

"But the allegations are that ... was the motivation," Friedland said. "And plaintiffs have submitted evidence they suggest shows that was the motivation. So why shouldn't the case proceed perhaps to discovery to see if that was really the motivation or not?"

"We're not saying the case shouldn't proceed," Flentje said. "But it is extraordinary for a court to enjoin the president's national security determination based on some newspaper articles."

4. Solicitor General Points to the Chaotic Rollout of the Executive Order

Purcell argued that the government's shifting interpretations of the executive order led to even legal permanent residents of the U.S. getting swept up in the chaotic first few days.

"They changed their minds about five times about whether it applies to those people in the time since the order issued -- and now they say it doesn't," Purcell said.

And while the White Counsel Don McGahn has since issued a memo to federal agencies indicating that the ban does not apply to legal permanent residents, Purcell argued that until they change the language of the order "to make that crystal-clear," the judges should not discount the possibility that the administration could again alter the enforcement of the ban.

Clifton later raised concerns with Flentje about the legal authority of the White House counsel to instruct other government departments about the meaning of the order. "Why shouldn't we look to the executive branch to more clearly define what the order means rather than looking through the lens of subsequent interpretations?" he asked.

Flentje responded that "the guidance from the White House counsel is the definitive interpretation of the [executive] order and the White House counsel speaks for the president in this context."

5. DOJ Lawyer Says Temporary Restraining Order Is Too Broad

Flentje argued that the temporary restraining order entered by Judge Robart last week is too broad, and said that the plaintiff states have no standing to challenge the president's authority to enforce provisions of the order affecting refugees and visa holders who have never before been admitted to the U.S.

He argued that if the appeals court decides to allow the restraining order to remain in place, it should be modified to apply only to "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future," he said.

But Purcell argued that limiting the restraining order in that way "would not remedy the [executive] order's violation" of the establishment clause in the Constitution "by favoring one religious group over another's."</s>ABC News(WASHINGTON) — Three judges from the United States Court of Appeals for the 9th Circuit grilled lawyers for the Department of Justice and the state of Washington Tuesday in a hearing over President Donald Trump’s executive order temporarily banning immigrants from seven majority-Muslim countries.

The case before the court centers on the Trump administration’s appeal of a nationwide temporary restraining order put in place last Friday by U.S. District Court Judge James Robart in Seattle. The executive order also placed a hold on worldwide refugee admissions and indefinitely blocked Syrian refugees from entering the U.S.

The administration asserts that the restraining order is “vastly overbroad” and an improper judicial encroachment on the authority of the president.

Thousands of people tuned in to listen to an audio-only live stream of the hearing. The judges have indicated that a ruling could come as soon as Wednesday.

Arguing for DOJ was August Flentje, special counsel to the assistant attorney general, Civil Division. Washington state’s solicitor general, Noah Purcell, presented the case for the states of Washington and Minnesota. Nearly 100 technology companies, as well as numerous civil rights groups and lawyers, filed amicus briefs with the court in support of Washington state.

The three judges who heard the case via telephonic conference were: Circuit Judge Michelle Friedland in San Jose, (appointed by President Barack Obama), who presided over the hearing; Senior Circuit Judge William C. Canby in Phoenix (appointed by President Jimmy Carter); and Senior Circuit Judge Richard Clifton in Honolulu (appointed by President George W. Bush).

Here were the key moments from the hearing:

1. Judges Ask for Evidence to Support the Travel Ban

Arguing for the federal government that the president’s executive order was “well within the president’s power as delegated to him by Congress,” Flentje soon found himself on the defensive as Judge Friedland pressed for evidence the government relied on in determining the risks posed by immigrants from the seven majority-Muslim countries affected by the executive order.

“Has the government pointed to any evidence connecting these countries with terrorism?” Friedland asked.

“These proceedings have been moving very fast,” Flentje replied, before citing decisions made during the Obama administration to restrict nationals of the seven countries from eligibility in a visa waiver program. “And that is, I think, the strongest type of reliance, where the president is relying on Congress’s determination that these are countries of concern.”

Chiming in, Judge Canby pointed out that during last week’s hearing in Seattle, the federal government’s lawyer was unable to provide any examples of federal crimes committed in the U.S. by visa holders from the seven countries.

“Yes, your honor,” Flentje answered. “These proceedings have been moving quite fast and we’re doing the best we can,” he added, before citing an example of people from Somalia who were convicted in the United States of supporting Somali-based terror group Al-Shabaab.

“Is that in the record?” Friedland asked. “Can you point us to where in the record you are referring”

“It is not in the record,” Flentje conceded.

Purcell, the Washington solicitor general, argued that “shocking evidence” of President Trump’s “intent to discriminate against Muslims” is proof that the travel ban is unconstitutional because it was allegedly motivated by religious discrimination.

But Purcell was repeatedly challenged on that assertion by Judge Clifton, who pointed out that the executive order affects only a small percentage of Muslims worldwide.

“I have trouble understanding why we’re supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected,” Clifton said. “And where the concern for those connected with radical Islamic sects is kind of hard to deny.”

“We’re not saying that this is a complete ban on Muslims entering the country,” Purcell said, referring to the broad exclusionary policy once promoted by Trump early in the presidential campaign.

“[But] we do not need to prove that this order harms only Muslims or that it harms every Muslim,” he continued. “We just need to prove that it was motivated by a desire to harm Muslims.”

3. Judges Ask Whether the President Could Legally Ban All Muslims

Flentje was repeatedly asked by the judges if the president could explicitly ban all Muslims from entering the country without review by the judicial branch.

“Could the president say in the order, ‘We’re not going to let any Muslims in’?” Canby asked.

“That’s not what the order does here,” Flentje replied, avoiding a direct response.

“I know, I know,” Canby said. “Could he do that?”

“That’s not what the order does,” Flentje answered twice more.

As the hearing drew to a close, Flentje conceded that “if there were an executive order that prevented the entry of Muslims, there would be people with standing to challenge that,” he said. “But that’s not the order we have here. The order is limited to the countries defined by Congress.”

“But the allegations are that … was the motivation,” Friedland said. “And plaintiffs have submitted evidence they suggest shows that was the motivation. So why shouldn’t the case proceed perhaps to discovery to see if that was really the motivation or not?”

“We’re not saying the case shouldn’t proceed,” Flentje said. “But it is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles.”

4. Solicitor General Points to the Chaotic Rollout of the Executive Order

Purcell argued that the government’s shifting interpretations of the executive order led to even legal permanent residents of the U.S. getting swept up in the chaotic first few days.

“They changed their minds about five times about whether it applies to those people in the time since the order issued — and now they say it doesn’t,” Purcell said.

And while the White Counsel Don McGahn has since issued a memo to federal agencies indicating that the ban does not apply to legal permanent residents, Purcell argued that until they change the language of the order “to make that crystal-clear,” the judges should not discount the possibility that the administration could again alter the enforcement of the ban.

Clifton later raised concerns with Flentje about the legal authority of the White House counsel to instruct other government departments about the meaning of the order. “Why shouldn’t we look to the executive branch to more clearly define what the order means rather than looking through the lens of subsequent interpretations?” he asked.

Flentje responded that “the guidance from the White House counsel is the definitive interpretation of the [executive] order and the White House counsel speaks for the president in this context.”



5. DOJ Lawyer Says Temporary Restraining Order Too Broad

Flentje argued that the temporary restraining order entered by Judge Robart last week is too broad, and said that the plaintiff states have no standing to challenge the president’s authority to enforce provisions of the order affecting refugees and visa holders who have never before been admitted to the U.S.

He argued that if the appeals court decides to allow the restraining order to remain in place, it should be modified to apply only to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future,” he said.

But Purcell argued that limiting the restraining order in that way “would not remedy the [executive] order’s violation” of the establishment clause in the Constitution “by favoring one religious group over another’s.”</s>(CNN) — A federal appeals court will hear oral arguments Tuesday evening to determine whether to lift a nationwide injunction against President Donald Trump’s travel ban against citizens of seven Muslim-majority countries.

The hearing will be conducted by telephone but contains high drama, as one of Trump’s signature policies is challenged by two states and backed by numerous advocacy groups. Trump has also repeatedly attacked the federal judge who blocked the ruling last Friday.

Judge James Robart of the US District Court for the Western District of Washington suspended key parts of the executive order nationwide Friday, clearing the way for resumed travel from the seven countries. The executive order bars citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the US for 90 days, all refugees for 120 days and indefinitely halts refugees from Syria.

In response, Trump fired off two tweets in response attacking the judge. In one he referred to Robart as a “so called” judge. In another, he said, “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

Tuesday’s hearing is only on the question of the injunction, not on the constitutionality of the executive order. A ruling is expected later this week, according to the court.

And no matter what its ruling here, the loser is likely to appeal to a larger panel of judges on the Ninth Circuit or go straight to the Supreme Court.

Three judges of the Ninth Circuit Court of Appeals — two appointed by Democratic presidents, one by a Republican — will conduct the hearing by telephone.

Solicitor General Noah Purcell will present the arguments of two states, Washington and Minnesota, and urge the court to leave the injunction in place. In court papers Purcell has argued that the executive order “unleashed chaos” when it was signed January 27.

The Justice Department says Trump’s order “is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees.” August Flentje, special counsel to the assistant attorney general at the Justice Department, will argue for the government.

The judges are: William C. Canby Jr., an appointee of President Jimmy Carter; Judge Michelle T. Friedland; who was appointed by President Barack Obama; and Judge Richard R. Clifton, an appointee of President George W. Bush.

The Ninth Circuit has a reputation as one of the most liberal in the nation to the point where some Republican lawmakers have even pushed to split it up in an effort to limit its impact.

Kari Hong, an assistant professor at Boston College Law School, said Tuesday’s hearing is likely to be more technical in nature than philosophical.

“The Ninth Circuit is often called a liberal court, but the issues they have to figure out today are dry and technical ones relating to standards of review and the deference owed to the lower court,” Hong said. “Those issues will be resolved without regard to political preferences.”</s>WGN TV’s Mark Suppelsa Discusses The Latest On The 9th Circuit Court Of Appeals’ Hearing

WGN TV’s Mark Suppelsa joins Roe Conn and Anna Davlantes to talk about the latest from the 9th Circuit Court of Appeals’ hearing on President Trump’s Immigration Ban. They break down the arguments and discuss what is next for the Executive Order after tonight’s hearing.
The Ninth Circuit Court of Appeals holds a hearing, by telephone, for the U.S. Justice Department and plaintiffs (states of Washington and Minnesota) arguments whether or not to reinstate the travel ban suspended on Friday by U.S. District Court Judge James Robart. Judge Michelle Friedland states the court will work to deliver its decision quickly.