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Washington v. Trump Oral Args: Will 9th Cir Revive Trump's Immigration Ban?

By Casey C. Sullivan, Esq. on February 08, 2017 | Last updated on March 21, 2019

Yesterday's oral arguments in Washington v. Trump might have been the most popular arguments ever held in the Ninth Circuit. More than 40,000 people 137,000 people have listened along to the arguments, which were streamed live on the Ninth's YouTube page.

What did they hear? A passionate, occasionally messy, debate about the president's executive order barring refugees and immigrants from seven majority-Muslim nations and judges that seemed, at times, skeptical of the government's position. Here are the highlights.

Looking for the Evidence Behind the EO

The arguments were held just five days after a federal judge in Seattle issued a temporary restraining order enjoining enforcement of Trump's immigration ban nationally -- and the rushed nature of the case sometimes showed.

August Flentje started the hearing off, arguing for the U.S. government before Judges William Canby Jr., Richard Clifton, and Michelle Friedland. The lower court's TRO, Flentje began, impinged on the president and Congress's national security determinations, necessitating a stay.

"Have you offered any evidence to support" the need for the executive order? Judge Friedland asked. "Has the government pointed to any evidence connecting these countries with terrorism?" she pressed.

Judge Friedland was not alone in her questioning. Judge Clifton asked if there was a "real risk" posed by leaving regular, pre-executive order procedures in place. Judge Canby pointed out that the DOJ had previously acknowledged that no visa-holders from the seven effected countries have committed federal offenses.

"These proceedings have been moving quite fast" Flentje responded, repeatedly. He pointed to Congress's designation of the seven countries as "countries of concern" as well as some terrorism connections that were not in the record. "We've been doing the best we can," given the rushed circumstances, Flentje explained.

Judge Friedland was not amused. "You appealed to us before you continued in the district court to develop the record, so why should we be hearing this now if it sounds like you're trying to say you're going to present other evidence later?"

Standing and Reviewability

In its early filings, the Department of Justice characterized the president's national security determinations as "unreviewable," and condemned the lower court's TRO as impermissible "second-guessing."

That position quickly came up during oral arguments. "Are you arguing," Judge Friedland asked, "that the president's decision" in regards to national security is unreviewable? Yes, Flentje responded.

He would temper that position, however. "There are obvious constitutional limitations," Flentje said, acknowledging that the executive's plenary powers weren't without limits. "But we're discussing the risk assessment," he continued. Any review must be limited to the four corners of the order and come from those with standing to sue.

And while standing remained an issue in the arguments, it seemed unlikely that the judges would resolve the dispute on those grounds. Judge Canby, for example, suggested that the impact on state universities was sufficient for standing, while Judge Friedland at points wondered whether the court should go to the merits of the dispute.

Evidence of Animus

Flentje wasn't the only one who got off to a rocky start. When Noah G. Purcell began arguing for Washington State, he dove into a jurisdictional argument. The federal government was appealing to stay the TRO, instead of seeking mandamus relief, Purcell said, making their motion procedurally improper. He was quickly cut off by Judge Clifton who demanded, "Why should we care?"

"You're free to use your time today as you want," Judge Clifton said as Purcell answered, "but I suggest that this might not be the topic that's most important." Undeterred, Purcell continued on.

One of the more important topics that the parties eventually got around to was whether the immigration ban was religious discrimination. Judge Clifton noted that the countries impacted by the ban make up only a small percentage of the world's Muslim population, perhaps around 15 percent.

He hadn't done the math, Purcell acknowledged, but the state does "not need to prove that this order harms only Muslims, or that it harms every Muslim. We just need to prove that it was motivated in part by a desire to harm Muslims."

That proof, Purcell, argued, could be found, in part, in Trump's campaign rhetoric, where he called for a ban on Muslim's entering the nation.

In his rebuttal, Flentje asserted that "it's 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 was "very troubling second-guessing," he said.

Why shouldn't the statements of Trump and his advisors be relied upon, Judge Clifton wondered. "We're all on the fast track here... either those kind of statements were made or they were not." That makes them "potential evidence, the basis for an argument."

What's Next?

From oral arguments, the government seemed unlikely to get a full stay of the TRO. Judges Friedland and Canby both seemed sympathetic to Washington State's arguments, while Judge Clifton remained a bit more skeptical.

Judge Friedland said that the court will issue an opinion as soon as possible, perhaps within the next few days.

Purcell urged a reasoned opinion, one that could withstand scrutiny by the Supreme Court, to whom the United States is likely to appeal.

Meanwhile, the legal battle is continuing in the district court, where the judge has asked for briefing on whether or not he should issue a preliminary injunction.

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