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Appeals Court Considers Whether To Lift Stay On Immigration Order


Today, a hearing on President Trump's executive order barring travelers from seven predominantly Muslim countries and all refugees worldwide. The state of Washington took the federal government to court and won a temporary restraining order. The federal government appealed that order, and today, the 9th Circuit U.S. Court of Appeals in San Francisco held a telephone hearing on the government's request to stay the executive order back into effect.

Department of Justice Special Counsel August Flentje argued for the Trump administration before three appellate judges. Judge Rifford (ph) - Richard Clifton, a George W. Bush appointee, interrupted him to ask about the justification for Trump's executive order.


RICHARD CLIFTON: 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 weren't allowed to stay in place while the administration - the new administration conducts its review?

AUGUST FLENTJE: Well, the president determined that there was a real risk.

SIEGEL: And Judge Michelle Friedland, who was named to the bench by President Obama, pressed the administration's lawyer on whether he's arguing that immigration and national security are areas of exclusive presidential authority.


MICHELLE FRIEDLAND: So were we back to you...

FLENTJE: Talk briefly...

FRIEDLAND: ...Are you arguing, then, that the president's decision in that regard is unreviewable?

FLENTJE: The - yes. What we're - there are obviously constitutional limitations, but we're discussing the risk assessment.

SIEGEL: The case for keeping the stay in place - that is not implementing Trump's travel ban - was made by Noah Purcell, the solicitor general of Washington state. And Purcell laid out what he claims are the irreparable harms that the travel ban would do to his state.


NOAH PURCELL: We have students and faculty at our state universities who are stranded overseas. We have families that separated. We had - we have longtime residents who cannot travel overseas to visit their families without knowing that they would be able to come back. We have lost tax revenue.

SIEGEL: The judges questioned Washington state's claim that the travel order amounts to a violation of the First Amendment's guarantee of freedom of religion. How can it be a Muslim ban, they were asked - they asked, if most of the world's Muslims aren't covered by it?


PURCELL: Your honor, the case law from this court and the Supreme Court is very clear that to prove religious discrimination, 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.

SIEGEL: That's Noah Purcell, solicitor general of the state of Washington, arguing in a telephone hearing today of the 9th U.S. Circuit Court of Appeals. Joining me in the studio right now are NPR legal affairs correspondent Nina Totenberg and NPR senior editor and correspondent Ron Elving. Good to see you both.

RON ELVING, BYLINE: Hello, Robert.


SIEGEL: They're here. And Nina, let's start with you. We had a hearing. As we could expect, it was a mix of procedural questions and questions of substance. What struck you most in what you heard?

TOTENBERG: What a hard time both sides were having, basically struck me. Although I thought the government had a harder time in some ways because it failed to be able to point to any evidence that any of the people from these countries have in fact participated in terrorist acts in the United States. And it got pressed on that. And it got asked, among other things, could the president say, we're not going to allow Muslims into this country at all? And the government's lawyer fudged on it initially.

SIEGEL: He didn't say no.

TOTENBERG: He didn't say no (laughter). He just said, well - finally, Judge Clifton, who's the George W. Bush appointee, said, look; we'd like to get an answer on this. And he said, well, there might be problems if we did that, but that's not this.

And then the other side, the state of Washington's solicitor general, Mr. Purcell, had a lot of trouble because as he kept being told, as you pointed out, look; the majority of the world's Muslims are not affected by this order, so you can't say it's a Muslim ban. How can you say it's a Muslim ban? And that was really - he really didn't come up with a great answer to that. And I think it was Judge Clifton who said, look; we make discriminations based on nationality all the time.

SIEGEL: Cubans get special treatment in some respect, yeah.

TOTENBERG: Cubans, North Koreans, all kinds of people can have an easier or a harder time coming in.

SIEGEL: Yeah, and of course Purcell, the Washington state solicitor general, made the argument at least that there are many different grounds in which they're opposing this. And therefore, sort of if you don't like that one, well, we have other arguments against the Trump administration. And Ron, what did you think of this?

ELVING: It was a bit of a cafeteria. You can take this one, or you can take that one. With respect to Muslims, I was a little mystified he didn't just say, well, it's clearly aimed at Muslims. It's a predominantly Muslim population that's being identified. And there is a great deal of ancillary evidence. And he did mention, without naming Rudy Giuliani...


ELVING: ...A presidential adviser saying that the intent here was to come up with a Muslim ban and make it legal. So he had that in his favor or at least in his corner. And he also tried to make arguments to the effect that this is the president's best swing at honoring essentially a campaign pledge, and we don't have to sit still for it because it has any number of negative impacts on our states and on any number of other states.

SIEGEL: One question that was raised in both the - this hearing was divided in half - the presentation of the federal government's case to lift the temporary restraining order and then the state of Washington arguing for itself and also Minnesota that you should continue to restrain this policy. There was a question of time. We had the temporary restraining order just a few days ago, and now we had this. And the question is, who is rushing this? Who needs more time for this argument?

TOTENBERG: Well the - and the (laughing) - and the judges weren't sympathetic...


TOTENBERG: ...To more time from either side. But in this case, there is supposed to be, if this is left undisturbed, a second hearing in I think 14 days or some - or less about whether or not there should be an injunction preventing this order - a more permanent injunction preventing this order from - for a longer period of time. Now, this is all involved in all kinds of procedural, to use a legal term, mishigas.


TOTENBERG: But it mattered. These kinds of procedural things do matter, and one had - you know, it just depends where the votes are here. I mean they'd probably love to have a unanimous ruling. And they might get a unanimous ruling for a slightly circumscribed order for a more circumscribed order than judge - than the district court judges' was. But who knows?

SIEGEL: We should say this. Of the three judges, Judge Richard Clifton was the George W. Bush appointee to the bench. Judge Friedland, Michelle Friedland, who presided over this particular hearing, was an Obama appointee. And the third justice - the third judge - excuse me - Judge Canby who was on this panel, was appointed by Jimmy Carter...


SIEGEL: ...And spent a number of years in the Peace Corps in Ethiopia and elsewhere.

TOTENBERG: And he's in his 80s.

ELVING: He's 85. He's 85.

SIEGEL: He's in his 80s, yeah.

TOTENBERG: But you couldn't tell it listening to him.


ELVING: No, he was quite spry. And he was perhaps the first one to really draw blood when he asked August Flentje, the government's attorney, how many offenses do we have that have been committed by people from these seven countries? And then answered his own question - turns out there are none - well, at least none presented in terms of this hearing.

Flentje then tried to talk about some people from Somalia who had been convicted for things they had done with respect to al-Shabab. But he didn't really have that in the record, so it wasn't a particularly effective response.

SIEGEL: Ron Elving and Nina Totenberg, thanks for talking with us about today's hearing.

TOTENBERG: Our pleasure.

ELVING: Thank you, Robert. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
Ron Elving is Senior Editor and Correspondent on the Washington Desk for NPR News, where he is frequently heard as a news analyst and writes regularly for