Appeals court panel appears skeptical of Trump’s travel ban

Lively but technical hearing
Demonstrators outside the U.S. Court of Appeals for the Ninth Circuit in San Francisco on Tuesday.
Demonstrators outside the U.S. Court of Appeals for the Ninth Circuit in San Francisco on Tuesday.

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WASHINGTON — A three-judge federal appeals panel voiced skepticism on Tuesday at the Justice Department’s broad defense of President Donald Trump’s targeted travel ban during arguments over how much power the president has to impose immigration restrictions based on national security concerns.

It was a lively but technical hearing on an issue that has gripped much of the country’s attention — and that of foreign allies and Middle East nations — for the past week. Issued without warning on Jan. 27, a week after Trump took office, the executive order disrupted travel and drew protests at the nation’s airports by suspending entry for people from seven predominantly Muslim countries and limiting the nation’s refugee program.

No matter how the 9th U.S. Circuit Court of Appeals rules — in an order that is expected within days — an appeal to the U.S. Supreme Court is likely. That court remains short-handed and could deadlock. A 4-4 tie in the Supreme Court would leave the appeals court’s ruling in place.

“This is a traditional national security judgment that is assigned to the political branches,” said August E. Flentje, the Justice Department’s lawyer, who defended the travel ban. He urged the court to issue an emergency stay, saying the executive order was plainly constitutional and beyond the power of the court to second-guess.

Later, Judge Michelle T. Friedland pressed Flentje on that point. “Are you arguing, then, that the president’s decision in that regard is unreviewable?” Friedland asked.

Flentje paused. Then he said yes.

Several courts around the nation have blocked aspects of Trump’s order, but the broadest ruling was the one at issue in Tuesday’s arguments in front of the 9th Circuit.

The three-judge panel was considering an earlier ruling by Judge James Robart of the U.S. District Court in Seattle, which allowed previously barred travelers and immigrants to enter the country.

The case, State of Washington v. Trump, is in its earliest stages, and the question for the appeals court on Tuesday was a narrow one: Should it stay Robart’s temporary restraining order and reinstate the travel ban while the case proceeds?

The argument, which lasted about an hour, was conducted over the telephone and was live-streamed on the website of the appeals court. In a media advisory issued before the argument, the court said that “a ruling was not expected to come down today, but probably this week.”

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