Analysis-Legal battle over travel ban pits Trump’s powers against his own words

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By Mica Rosenberg | NEW YORK

NEW YORK A U.S. appeals court is weighing
arguments for and against President Donald Trump’s temporary
travel ban, but its decision this week may not yet answer the
underlying legal questions being raised in the fast-moving case.

The 9th U.S. Circuit Court of Appeals in San Francisco is
expected to rule only on the narrow question of whether a lower
court’s emergency halt to an executive order by Trump was
justified. Trump signed the order on Jan. 27 barring citizens
from seven Muslim-majority countries for 90 days and halted all
refugee entries for four months.

The appeals court has several options. It could kick the
case back to lower court judge James Robart in Seattle, saying
it is premature for them to make a ruling before he has had a
chance to consider all the evidence. Robart stopped Trump’s
order just a week after he issued it and before all the
arguments had been developed on both sides.

Or the panel of three appellate judges could side with the
government and find halting the order was harmful to national
security, reinstating it while the case continues.

Their decision is “one step in what will be a long, historic
case,” Stephen Yale-Loehr, a professor at Cornell University Law
School who specializes in immigration. Ultimately, the case is
likely to end up in the U.S. Supreme Court, legal experts said.

The case is the first serious test of executive authority
since Trump became president on Jan. 20, and legal experts said
there were three main issues at play for the judiciary.

The broad questions in the case are whether the states have
the right to challenge federal immigration laws, how much power
the court has to question the president’s national security
decisions, and if the order discriminates against Muslims.

Washington state filed the original lawsuit, claiming it was
hurt by the ban when students and faculty from state-run
universities and corporate employees were stranded overseas.

Trump administration lawyer August Flentje argued at an
appeals court hearing on Tuesday that the states lack “standing”
to sue the federal government over immigration law, but his
arguments were questioned by the judges.


If the court decides the states are allowed to bring the
case, the next major question is about the limits of the
president’s power.

“Historically courts have been exceedingly deferential to
governmental actions in the immigration area,” said Jonathan
Adler, a Case Western Reserve University School of Law
professor. Though, he added, “the way they carried it out
understandably makes some people, and perhaps some courts,
uneasy with applying the traditional rules.”

Trump issued the order late on a Friday and caused chaos at
airports as officials struggled to quickly change procedures.

At Tuesday’s hearing, Judge Richard Clifton, an appointee of
Republican president George W. Bush and Judge William Canby, an
appointee of Democratic president Jimmy Carter, pushed the
government to explain what would happen if Trump simply decided
to ban all Muslims from entering the United States. “Would
anybody be able to challenge that?” Canby asked.

Flentje emphasized that the order did not ban Muslims. He
said the president made a determination about immigration policy
based on a legitimate assessment of risk.

The government has said its order is grounded in a law
passed by congress that allows the president to suspend the
entry of “any class of aliens” that he deems “would be
detrimental to the interests of the United States.”

When asked by the third judge – Michelle Friedland,
appointed by Democrat Barack Obama – if that meant the
president’s decisions are “unreviewable” Flentje, after a pause,
answered “yes.” When pressed, Flentje acknowledged, however,
that constitutional concerns had been raised about the order.


One of the main concerns is allegations by the states, civil
rights groups, some lawmakers and citizens that the order
discriminates in violation of the constitution’s First
Amendment, which prohibits favoring one religion over another.

The judges will have to decide whether to look exclusively
at the actual text of the president’s order, which does not
mention any particular religion, or consider outside comments by
Trump and his team to discern their intent.

Washington state’s attorney Noah Purcell told the hearing
that even though the lawsuit is at an early stage, the amount of
evidence that Trump intended to discriminate against Muslims is “remarkable.” It cited Trump’s campaign promises of a “total and
complete shutdown of Muslims entering the United States.”

In a tweet on Monday night, Trump said “the threat from
radical Islamic terrorism is very real” urging the courts to act

Government lawyer Flentje countered Purcell by saying there
was danger in second guessing Trump’s decision-making about U.S.
security “based on some newspaper articles.”

Clifton asked about statements on Fox News by Trump adviser
Rudolph Giuliani, former New York mayor and former prosecutor,
that Trump had asked him to figure out how to make a Muslim ban

“Do you deny that in fact the statements attributed to then
candidate Trump and to his political advisers and most recently
Mr. Giuliani?” Clifton asked. “Either those types of statements
were made or not,” said Clifton. “If they were made it is
potential evidence.” (Additional reporting by Lawrence Hurley in Washington and
Nathan Layne in New York)

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