Flustered DOJ Lawyer Says 'We're Doing the Best We Can' to Justify Trump's Travel Ban

In an appeals court hearing, the government struggles to provide evidence that the executive order addresses "a real risk."


White House

Yesterday a Justice Department lawyer told a federal appeals court the legality of President Trump's January 27 order suspending the admission of refugees and temporarily banning travelers from seven Muslim-majority countries should be judged by the text of the document, without regard to the evidence supporting it or the motives behind it. "This is a traditional national security judgment that is assigned to the political branches and the president," the lawyer, August Flentje, said during a telephonic oral argument before a three-judge panel of the U.S. Court of Appeals for the 9th Circuit. The only question for the courts, he said, is whether "the decision is facially legitimate and bona fide," so "the review should be confined to the four corners of the document to determine if the decision itself and the executive order's findings have any issues with respect to [that] standard."

Flentje argued that "the executive order here meets that standard easily," since Trump selected the seven countries covered by the order based on a 2015 law that eliminated visa waivers for travelers from countries identified as sponsors of terrorism or havens for terrorists. The list originally included Iraq, Iran, Sudan, and Syria, and in 2016 the Obama administration added Libya, Somalia, and Yemen. "The president is relying on Congress's determination that these are countries of concern and Congress's procedures to identify countries of concern based on significant terrorist activity," Flentje said. As far as the Trump administration is concerned, "That is the end of the inquiry."

It was pretty clear the judges—William Canby Jr., Richard Clifton, and Michelle Friedland—did not agree. At this stage of the case, which was brought by the states of Washington and Minnesota, the court is considering whether to override a temporary restraining order (TRO) issued last Friday by James Robart, a federal judge in Seattle. The TRO blocked continued enforcement of Trump's order, which imposes a 90-day ban on travelers from the seven countries, a 120-ban on all refugees, and an indefinite ban on Syrian refugees. Since the government argues that the TRO is causing "irreparable harm," all three judges pressed Flentje for evidence that Trump's order addresses a real and substantial risk. He did not have much to offer.

"Well, the president determined that there was a real risk," Flentje ventured. Perceiving that the judges did not consider that sufficient, he offered a quasi-apology: "These proceedings have been moving quite fast, and we're doing the best we can." Later Flentje mentioned that "there have been a number of people from Somalia connected to Al Shabaab who have been convicted in the United States." But those cases did not involve attacks on targets within the United States, which are what Trump's order is supposed to prevent.

During the TRO hearing last Friday, Judge Canby noted, Robart asked the DOJ lawyer "how many federal [terrorism] offenses have we had being committed by people who came in with visas from these countries…and the answer was there haven't been any." As I noted on Monday (and as Flentje would have pointed out had he done his homework and been on his toes), that statement is not accurate. According to a review by Cato Institute immigration analyst Alex Nowrasteh, half a dozen people from Iran, Iraq, and Somalia have been convicted in the United States of charges related to domestic terrorism since 9/11. And although terrorists from those countries have not killed anyone in the United States since 1975, there have been less serious incidents, including two nonfatal knife attacks last year by people with Somali backgrounds.

Still, it is accurate to say that people from the countries covered by Trump's travel ban have been responsible for only a small share of terrorist activity and and zero deadly attacks in the United States during the last few decades, which casts doubt on the logic of the president's criteria. Flentje argued that the criteria should be accepted because they are based on the judgment of Congress and the Obama administration in deciding which travelers should be required to obtain visas. But as Washington Solicitor General Noah Purcell pointed out, requiring visas is "eminently different from a complete ban."

Canby, who was appointed by Jimmy Carter, noted that visitors from the seven countries undergo "the usual investigations before you give somebody a visa." Judge Clifton, who was appointed by George W. Bush, asked, "Is there any reason for us to think that there's a real risk, or that circumstances have changed such that there would be a real risk, if existing procedures were allowed to stay in place while the new administration conducts its review [of vetting procedures]?" Flentje did not have a good answer.

The security rationale for Trump's order is also relevant to another part of the 9th Circuit's analysis in deciding whether the TRO should stand: Are Washington and Minnesota likely to prevail on the merits? (Or, to be more precise, is the Trump administration likely to prevail in showing that Washington and Minnesota are not likely to prevail?) In particular, the order's relationship to preventing terrorism helps determine whether it is a legitimate national security measure or anti-Muslim discrimination in disguise, which would violate the Establishment Clause as well as the guarantee of equal protection.

Judge Friedland, who was appointed by Barack Obama, repeatedly pushed Flentje to acknowledge that an explicit ban on Muslims would be unconstitutional. He eventually allowed that "if there were an executive order that prevented entry of Muslims, there would be people with standing to challenge that, and I think that would raise Establishment Clause, First Amendment issues." But "that's not the order we have here," he added, and he rejected any attempt to divine anti-Muslim motives by looking beyond "the four corners of the document."

Purcell cited Trump's repeated calls for a complete ban on Muslims entering the United States, along with his adviser Rudy Giuliani's statement that the executive order represents a revised version of that proposal, designed to pass legal muster. "There are statements that we've quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims," he said, "given that we haven't even had any discovery yet to find out what might have been said in private."

Clifton was skeptical of the claim that the order amounts to anti-Muslim discrimination, noting that it applies to only a small share of the world's Muslims (about 15 percent, by his estimate) and that the limit on visa waivers focuses on travelers from the same seven countries. "It would be possible to identify these countries as a source of concern, and possibly as the subject of special treatment, without having religious motivation or discriminatory intent behind it," he said.

Purcell conceded that point but noted that the "exact same action" can be "perfectly legitimate with proper intent" but "unconstitutional if done with a desire to favor one religion over another." And "to prove religious discrimination," he said, "we do 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." Even Clifton granted, contrary to Flentje's position, that public statements by Trump and his advisers would be "potential evidence" of such an intent.

The judges were not receptive to Flentje's argument that Washington and Minnesota have no standing to challenge Trump's order. They all seemed to agree that the harm done to state universities that recruit students or faculty members from the banned countries sufficed to justify the lawsuit. "I'm not sure I'm convincing the court" on the standing issue, Flentje said. But he urged the judges to at least narrow the TRO so that it covers only "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future," which he described as "the core of the harm" identified by the plaintiffs.

Purcell said "there are thousands of people in Washington, and thousands more in Minnesota, who are originally from these countries but who are not yet citizens here." Some of those people, including university students and faculty members, were stranded abroad by Trump's order, while others are afraid to travel lest the same thing happen to them. Meanwhile, the order prevents their friends and relatives from visiting them. Purcell questioned the logic of including grandmothers, children, and others who pose no plausible threat in an order supposedly aimed at terrorists. He noted that administration officials had "changed their mind about five times" on the question of whether the order covers "roughly half a million" legal permanent residents. Their latest position is that it doesn't, but Purcell warned that could change unless the order is revised to clarify its scope.

Even Clifton, the judge who seemed most sympathetic to the administration's case, suggested the order was carelessly written. "The president can amend the order, but I'm not sure that the counsel to the president has that authority," he said. "Why shouldn't we look to the executive branch to more clearly define what the order means [by amending it] rather than have to look through the lens of these subsequent interpretations?"

No doubt such criticism would irk Trump, who over the weekend used Twitter to castigate "the so-called judge" who dared to frustrate his will and the "court system" that supposedly left Americans exposed to terrorist attacks. Flentje was a bit more tactful. "We are not saying the case shouldn't proceed," he said, "but it is extraordinary for a court to enjoin the president's national security determination based on some newspaper articles, and that is what's happened here. That is a very troubling second-guessing of the national security decision made by the president."

Purcell seemed to have Trump's tweets in mind at the beginning of his argument. "It has always been the judicial branch's role to say what the law is and to serve as a check on abuses by the executive branch," he said. "That judicial role has never been more important in recent memory than it is today. But the president is asking this court to abdicate that role here, to reinstate the executive order without meaningful judicial review, and to throw this country back into chaos."

NEXT: Final Showdown for Sessions, Yemen Revokes America's Raid Privileges, Dakota Access Pipeline to Proceed: A.M. Links

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “It has always been the judicial branch’s role to say what the law is

    Bullshit. Utter bullshit.

    1. It’s their role to say what the law is – rules and regulations promulgated by the unelected and unaccountable bureaucrats in the executive-branch agencies, on the other hand, are due a deference that it’s not the Court’s place to double-guess.

      1. It is their place to interpret ambiguous or vague aspects of laws and regulations produced by the political branches, and their relationship to the Constitution.

        It is absolutely not their place to decide what the law is.

  2. I listened to the live-streaming of the hearing last night and I think there’s a good point that Trump has the authority to declare a national interest in shutting down travel from whatever countries he wants. Nevertheless, green card holders at least (and possibly other vetted visa holders) have a due process right that was violated and the fact that the EO was obviously so sloppily put together that they had to walk back half of it (in a series of confused rationales) certainly suggests a TRO to examine just what the hell this EO actually says and does is proper. Just as Trump insists the EO isn’t a ban, it’s just a temporary halt until we can figure out what’s going on, so too the TRO isn’t a ban, it’s just a temporary halt to figure out what’s going on.

    1. Nice, someone should have said that to the court. Not that I agree, but it would be awesome trolling.

  3. Just because something has not yet happened, does not mean there isn’t a real risk. Someone actually dying is not the test for their being a risk. My house has never been burgled. Yet, i still lock the door and understand there is an actual risk.

    According to a review by Cato Institute immigration analyst Alex Nowrasteh, half a dozen people from Iran, Iraq, and Somalia have been convicted in the United States of charges related to domestic terrorism since 9/11. And although terrorists from those countries have not killed anyone in the United States since 1975, there have been less serious incidents, including two nonfatal knife attacks last year by people with Somali backgrounds.

    So yes there is a clear risk. We have just been lucky so far and caught the plots before they were executed. Moreover, the risk associated with refugees in the past, while relevant, does not determine the risks associated with ones in the future. Maybe Syrian refugees because of the risk of them being infiltrated by ISIS are more dangerous than the Iraqi and other refugees we have taken in the past?

    Maybe we should I don’t know put a temporary ban of say 120 days on accepting such people so we can figure that out. If only we had an administration that would do something reasonable like that instead of just having a Muslims ban.

    1. The “Muslim ban” crap was addressed last night – the claim that you can’t discriminate based on religion is a general rule, which rule generally prohibits discrimination on a variety of factors. As one of the judges pointed out, that non-discrimination rule also bans discrimination based on nationality – which, hello, Cuba? North Korea? The US damn sure can discriminate based on nationality in some cases, why not on race or sex or religion in some cases? A Muslim ban is certainly not as unlawful as some people are making it out to be. Whether or not it’s a good idea is a different argument, and I would suggest you’re arguing uphill if you’re not taking into consideration who got elected President. You know, elections have consequences as somebody once said.

      1. They have the authority to do it. The 1965 provision that banned such discrimination was never intended to repeal the President’s authority to outlaw immigration of nationalities or other protected classes for national security reasons.

        Regardless, this isn’t a Muslim ban. And calling it that is disingenuous.

        1. So when is Trump going to implement the Muslim ban he explicitly promised?

          1. He isn’t going to so you might as well drop this point

              1. so stop engaging in spreading fake news

                1. There is no clearer fact in the world than that Trump explicitly promised to ban all Muslims from entering the country. It’s still on his website.

                  1. Why is it so hard to understand he isn’t going to

                    1. Nothing. It would be blatantly unconstitutional. Why should he be immune from criticism because what he proposed is unconstitutional?

                    2. But he isnt doing it so stop freaking out

    2. These arguments sound awfully similar to the ones used for increased TSA presence in airports. Or for Border Patrol internal checkpoints. Or for stop & frisk.

      1. No they don’t. More importantly, there are two sides to that fallacy. It is just as much of a fallacy to say “because there hasn’t been risk in the past there can’t be now” as it is to say because there was risk in the past there must be now. The past is not determinate but that doesn’t mean it isn’t persuasive.

        1. Two sides to what fallacy? What fallacy did I state or imply?

        2. So why no ban on Saudis?

        3. If there hasn’t been a risk in the past, what are you basing this supposed increase in risk on? The only way to make sane decisions is to base them on past events and trends, aka reality. You’re advocating insanity. You can reduce risk, in general, by reducing freedom. That’s a slope that I would like Trump to be directed away from.

          1. That’s not really true since past events can lead you in the wrong direction. I am not sure you can just wait for events to occur and do it after the fact. Limiting it to what happened in US is not appropriately capturing risk.

            It is based on what is actually going on in those countries + Europe is how you determine it. Those countries except for Iran are highly unstable with significant ISIS presence. And there isn’t a clear way to determine who is who…other than green card holders already established and immigrant visas

            For ebola or some other disease, you don’t wait til you have a case here to do something about it. You look what is going on elsewhere and prepare.

            Now perhaps the EO is off base here but only using past events in US to assess risk going forward is silly

  4. ” …the legality of President Trump’s January 27 order… should be judged by the text of the document, without regard… (to) the motives behind it.”

    Well, isn’t that the way it’s supposed to be, laws/orders/etc. are interpreted by what they actually say and not by the alleged motives of those enacting or in favor of the law?

    1. Yes. American judges shouldn’t be out there trying to gather facts unrelated to the case. It’s about what authority the executive has in this case per the Constitution and laws passed by Congress. Everything else is bullshit noise.

    2. Legislative intent is something that is definitely reviewed by the courts. Traditionally it doesn’t have as much weight as let’s say the literal meaning of the text, but it definitely is looked at.

      1. I guess here it would be executive intent? Maybe that’s got an entirely different history

      2. Legislative intent is reviewed by some courts selectively. Usually depends on whether it supports the ruling the judge already wanted to make in the first place.

  5. If other countries, e.g. Canada, can turn away Americans because they might be doing some work in their country, then certainly the U.S. can turn away foreigners who might be a threat to the safety of Americans?
    My employer had to come up with a complete protocol of what words to use when our U.S. managers went into Canada to observe the facilities of a Canadian sister company. A V.P. was actually turned away at the border in Niagara Falls because he said he was going to “help” with some design of a new product the Canadian company was considering for export to the U.S.

    1. What Canadian law allows is completely different than what American law allows. It’s just an entirely irrelevant point when talking about a court case based on an executive order. This matter isn’t about what the law ought to be, but what the law and Constitution allow the President to do via executive order.

  6. I have a libertarian solution to this issue. How about we let any refugee who wants to come here, come, provided some American citizen or organization is willing to sponsor them and assume civil responsibility for any harm they cause or crime they commit. If reason believes in this, fine, let them sponsor refugees. But let them do so under the understanding that since the refugees got into the country under their sponsorship, Reason can be held civilly liable for any crime they commit. So if one of them goes nuts and shoots up a shopping mall, every victim will have a civil suit for damages against reason or whoever sponsored the refugee into the country.

    Talk is cheap. Lets see people put their money where their mouth is.

    1. Being a refugee has no correlation to being a criminal in this country. Hence many people’s concern that this is lizard-brain bigotry masquerading as security policy. I think it’s just Trump trying to keep a campaign promise (to ban all Muslims from entering) in the most legally tenable way he can find, which should please no one.

      1. Well there are all these countries that weren’t affected so i am not sure how all are kept from entering

        1. You don’t have to discriminate against all members or a certain percentage of members of a religion for it to be illegal discrimination.

          1. Was it illegal discrimination when almost no Syrian Christians were accepted as refugees?

            1. I don’t know yet.

          2. Yeah, that was the dumbest part of their argument. I heard the Connecticut AG making that argument. It is discrimination *based* on religion that is illegal. Not against people who have a religion. Almost everyone has a religion.

            If it was “I hereby ban all muslims” he wouldn’t have a leg to stand on. But he didn’t. In fact, none of the particulars of the individual matters. Just his country of origin. Which is a list of “terrorism danger spots” according to the president.

            The Christian fleeing certain (and horrific) death at the hands of ISIS is equally covered by this ban with the would-be terrorist infiltrator.

            Zero chance this counts as religious discrimination given an honest reading. (Trump’s desire to have exactly that kind of discriminatory policy notwithstanding.)

            1. But that’s fundamental to all antidiscrimination law, which includes the first amendment. A law is unconstitutional not just because it targets all members of a religious group. All it has to do is target religion period. A law can’t pass muster, for example, that bans all Jews from Connecticut from attending your public college but admits Jews from everywhere else.

              1. It didn’t target a religion though…it was 7 countries

                if obama can say 110K refugees–> trump can say 0

          3. you claimed all were which isnt even close. i guess you like alternative facts

            1. No Trump wanted to ban all Muslims. I have a question pending with John as to why this is or isn’t a broken campaign promise.

              1. Yea above you said he instituted a full ban which isn’t the case and he is not going to

    2. Amen. This is where I am starting to land. If Hollywood and the coasts want these folks, then buck up and take them in your backyard. Lead by example.

      The world doesn’t work as we want it to. From what I’ve seen, Europe and Canada were awfully welcoming of immigrants/refugees from the MENA. Until they actually arrived, then tunes started to change.

    3. better yet, anyone who dares birth a child into this country should be held civilly liable for any crime they commit in perpetuity!

      1. Yeah because there is not such thing as national borders. None. We have no right to deny anyone!!

        Good luck with that position.

    4. Sounds like a good idea to me.

      It’s so good that I doubt Congress will approve it. 🙁

  7. I dont understand how they can block the refugee temporary ban. If obama can decide 110K, 50K whatever…why can’t trump decide for 0?

    Anyway i think the issue is green cards/immigrant visas so only part of the EO should be on TRO….everything else seems ok as far as ban per the US code i think 8 US code 1182 section f i think it was.

    1. They don’t understand either. There is no legal case against the order. It’s just more TDS at this point.

  8. WHOA!!
    There’s a travel ban? Why hasn’t Reason written about this previously??

  9. I don’t recall anywhere in the law where it said that the executive branch needed to demonstrate the reasoning behind its discretionary authority before wielding it

    8 U.S. Code ? 1182 – Inadmissible aliens, to do exactly what he did:

    (f) Suspension of entry or imposition of restrictions by President
    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate

    im not a lawyer, but i would assume that things like ‘presidential “findings”‘, and what constitutes the requirements of a “proclamation”, are both well defined and understood terms

    they at least sound to the non-lawyer observer like they grant the office of the president substantial leeway in deciding for itself what ‘good enough reasons’ are. if there’s some role for judicial second-guessing here, it isn’t readily apparent.

    1. Yep appears it was within purview of the law. It isn’t his fault if other laws contradict each other.

  10. This is a bizarre instance of judicial overreach.
    The law is crystal clear that the POTUS has authority to control immigration in this way. A stay on the EO implementation is absurd.

    Imagine the situation where every order the POTUS made to departments within the executive branch was subject to a TRO issued by a circuit judge. It would collapse our system of government. (now we can argue the pro and cons of that certainly)
    Sure, take it to court, challenge the EO, but the broad judicial blocking of implementation of something clearly within the lawful control of the executive is completely over the top.

    1. The left are going to cheer this on, until it sets a precedent and eventually bites them in the ass. I think we’ve seen a couple examples of that lately.

  11. Do the courts get to substitute their judgement for the president’s on matters of national security?

    The law says he can suspend all travel from certain countries if he deems it to be in the interest of national security.

    He so deemed.

    I don’t think it says “unless a court doesn’t find his lawyer’s rational convincing”.

    This should be a black letter of the law slam dunk of a case.

    Even if it is a stupid policy.

    1. ^basically my same point.

      tho i’d add = “any class of aliens” is far broader and more discretionary than merely “what countries” people happen to be from. If he wants to bar left-handed dentists shorter than 6′ = shazaam. So be it.

      (as is, “detrimental to the interests” of the US; rather than representing a specific security threat)

      both terms seem to combine to allow the president to basically bar anyone he wants for any reason – and if there’s a standard of reasonableness required, its not embedded anywhere in the law itself.

      1. Yeah, I like yours better. We were typing at the same time.

        This is right in the wheelhouse of my number one pet peeve about the judiciary. They are supposed to be about the law. Or maybe I should say “The Law”.

        They interpret The Law and reconcile conflicts within The Law according to certain rules of order. If a law says something in black and white, they don’t have the authority to substitute their judgement.

        So if the constitution says congress shall make no law abridging the freedom of speech, it is really easy at that point to rule all the speech restrictions we have unconstitutional. No Law is really clear. Yet we have all sorts of made-up exceptions.

        The same goes for the second amendment. Shall not be abridged is crystal clear. It means that the Feds cannot ban nuclear bombs. There is no reasonable counter-argument. Yet we argue over the number of rounds a magazine can hold under federal law.

        If they would just do their job, we’d have about 500 constitutional amendments and all of these policy issues would have been sorted in the court of public opinion, which is as it should be.

  12. Tony can you help me out with some money? I dont qualify for welfare

    1. You’re a bad libertarian. Ayn Rand would put out a cigarette on your arm.

  13. Why do you hate struggling people? Ayn Rand isn’t a libertarian and hated them.

  14. Tony are you a climate scientist?

    If not…. how can you determine what climate scientists are saying is accurate or not

    1. I can’t. All truth is relative. Not only that, I can believe whatever facts I want to believe. Weeee! A is Q!

  15. In their kitchen-sink attack on the order, the opponents have hit on some actual legitimate legal issues:

    1) The administration has been all over the map about green-card holders, so maybe the courts can clarify that, yes, green-card holders have due process rights – before they can be excluded they must be found, after a hearing, to have violated immigration law.

    2) There is a textual conflict, to put it mildly, between the law allowing the Pres to block whoever he wants and the law against country-of-origin discrimination in issuing immigrant visas. You can say “well, the one law *obviously* supersedes the other!” but the literal language of one statute will have to yield to the literal language of the other. It’s a legitimate exercise of judicial power to reconcile statutes which seemingly point in different directions.

    3) The preference for minority religions is arguably a form of affirmative action and open to some of the same objections as other forms of affirmative action. It’s amusing that progs have finally found a form of affirmative action which they don’t like.

    The rest of the order seems perfectly valid – and by identifying the same 7 “countries of concern” as Obama and Congress did, Trump should logically force progs to accuse Obama and Congress of Islamophobia, or else drop the subject in embarrassment, but of course they are incapable of embarrassment. So, yeah, “it’s not discrimination when *we* do it because we’re pure!” That should work.

    1. BUT…

      Attacking the whole order is ridiculous.

      Allowing standing to the states flies against precedent, and anyway, how are the states *as states* irrevocably harmed such that they need an injunction RIGHT AWAY OMG WE CAN’T WAIT FOR A FULL JUDICIAL HEARING!

  16. …temporarily banning travelers from seven Muslim-majority countries…

    Oh, like Indonesia, Pakistan, Bangladesh, Turkey, and Egypt?

    Could we please stop parroting this “Muslim-majority” crap? Six of those countries are active havens for terrorist organizations, and one is Iran. Those facts are far and away more salient to the executive order than the majority religion there.

    Here’s how a NPR story this morning starts:

    A place without much of a functioning government is choosing a president today. We’re talking about Somalia, which has suffered from civil war and terrorism for more than two decades.

    Can you guess what word was not heard in this story? “Muslim”. Why not, pray tell, given that it’s the sole descriptive term when discussing the immigration EO?

    Please please please stop contributing to the media’s unbelievably disingenuous framing of this story.

Please to post comments

Comments are closed.