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 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. 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. 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. “What are the constitutional limitations that the government acknowledges?,” asked Friedland, implying that she believed there are such limits. 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. 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. 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. 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. 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.
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.