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."