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SAN FRANCISCO/WASHINGTON A government lawyer
defending President Donald Trump’s temporary entry ban on people
from seven Muslim-majority countries came under intense scrutiny
on Tuesday from a U.S. federal appeals court that questioned
whether it unfairly targeted people over their religion.
The three-judge 9th U.S. Circuit Court of Appeals panel
asked the Trump administration’s lawyer tough questions about
whether the administration had provided any evidence that people
from the seven countries were a danger.
Judge Richard Clifton, a George W. Bush appointee, posed
equally tough questions for an attorney representing Minnesota
and Washington states, which are challenging the ban. Clifton
asked if a Seattle judge’s suspension of Trump’s policy was “overbroad.”
The 9th Circuit said at the end of the session that it would
issue a ruling as soon as possible. Earlier on Tuesday, the
court said it would likely rule this week but would not issue a
same-day ruling. The matter is ultimately likely to go to the
U.S. Supreme Court.
Trump’s Jan. 27 order barred travelers from Iran, Iraq,
Libya, Somalia, Sudan, Syria and Yemen from entering for 90 days
and all refugees for 120 days, except refugees from Syria, whom
he would ban indefinitely.
Trump, who took office on Jan. 20, has defended the measure,
the most divisive act of his young presidency, as necessary for
The order sparked protests and chaos at U.S. and overseas
airports in the weekend that followed.
A federal judge in Seattle, responding to the legal
challenge, suspended the order last Friday.
August Flentje, special counsel for the U.S. Justice
Department, told the appellate panel that “Congress has
expressly authorized the president to suspend entry of
categories of aliens.”
“That’s what the president did here,” Flentje said at the
start of a more than hour-long oral argument conducted by
telephone and broadcast live online.
Individuals, states and civil rights groups challenging the
ban said Trump’s administration had offered no evidence it
answered a threat. Opponents also assailed the ban as
discriminatory against Muslims in violation of the U.S.
Constitution and applicable laws.
The states of Minnesota and Washington brought the case
against the Trump administration.
When the 9th Circuit asked Flentje what evidence the
executive order had used to connect the seven countries affected
by the order with terrorism in the United States, Flentje said
the “proceedings have been moving very fast,” without giving
He said both Congress and the previous administration of
Democrat Barack Obama had determined that those seven countries
posed the greatest risk of terrorism and had in the past put
stricter visa requirements on them.
“I’m not sure I’m convincing the court,” Flentje said at one
Noah Purcell, solicitor general for the state of Washington,
began his argument urging the court to serve “as a check on
“The president is asking this court to abdicate that role
here,” Purcell said. “The court should decline that invitation.”
The judges pummeled both sides with questions.
Clifton pushed for evidence that the ban discriminated
against Muslims and said he was hearing more allegations than
“I don’t think allegations cut it at this stage,” Clifton
Trump frequently promised during his 2016 election campaign
to curb illegal immigration, especially from Mexico, and to
crack down on Islamist violence. His travel ban sparked protests
and chaos at U.S. and overseas airports.
National security veterans, major U.S. technology companies
and law enforcement officials from more than a dozen states
backed a legal effort against the ban.
“I actually can’t believe that we’re having to fight to
protect the security, in a court system, to protect the security
of our nation,” Trump said at an event with sheriffs at the
White House on Tuesday.
Although the legal fight over Trump’s ban is ultimately
about how much power a president has to decide who cannot enter
the United States, the appeals court is only looking at the
narrower question of whether the Seattle court had the grounds
to halt Trump’s order.
“To be clear, all that’s at issue tonight in the hearing is
an interim decision on whether the president’s order is enforced
or not, until the case is heard on the actual merits of the
order,” White House spokesman Sean Spicer said.
(Additional reporting by Amanda Becker, Timothy Gardner, David
Shepardson and Julia Edwards Ainsley in Washington, Mica
Rosenberg in New York, and Kristina Cooke and Peter Henderson in
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