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Muslim Ban Faces New Trouble In Federal Appeals Court

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Muslim Ban Faces New Trouble In Federal Appeals Court

Muslim Ban, Appeals Court

Reprinted with permission from AlterNet.

President Trump’s sweeping executive order banning travelers from seven Muslim countries appears to be in trouble and unlikely to fully survive federal court review.

That was the sense after a three-judge federal appeals court panel gave a hard time to lawyers for Trump and two states suing him in the most high-stakes lawsuit challenging the travel ban. Last weekend, Washington and Minnesota won a temporary restraining order (TRO) blocking the ban nationwide.

The Justice Department went from opening with a full-throated defense of Trump’s authority to issue executive orders, citing national security concerns, to a closing suggestion that the court preserve the travel ban on people who have never been to the U.S. before.

“At most, the injunction should be limited to the class of individuals on whom the state’s claims rest—previously admitted aliens who are temporarily abroad now, or who wish to travel and return to the United States in the future,” said DOJ Special Counsel August E. Flentje. “That is the core of the harm they’ve identified… and not issued more broadly.”

Meanwhile, Washington state’s Solicitor General, Noah G. Purcell, who was also representing Minnesota, didn’t appear to persuade all of the judges that the White House travel ban should be entirely suspended while the court challenges play out in federal district court.

“It goes to what level of deference is owed to the executive,” he said, responding to a question about whether Trump exceeded the authority granted to him by Congress to make immigration policy. But that same question hung over the appeals court hearing Tuesday, as well as suits challenging the Muslim ban filed in more than a half-dozen districts courts across the U.S.—where almost every judge has concluded Trump’s order was sloppily unconstitutional.

While those district courts issued decisions limiting Trump’s ban in their jurisdictions, the ruling in response to Washington and Minnesota’s lawsuit was most sweeping because it led to a TRO suspending it nationwide. That response led to the White House’s appeal before the U.S. Court of Appeals for the Ninth Circuit—based in San Francisco and one of the nation’s most liberal—where a ruling is expected to follow as early as Wednesday.

The White House is hoping the appeals court will lift the TRO, reviving the travel ban, while the district court litigation continues. But there are several scenarios. The appeals court could do that—although the judges’ astonishment of many of the Justice Department’s answers makes that seem unlikely. Or it could issue its own decision striking down parts of Trump’s executive order—such as sections targeting legal residents. Or it could send the entire matter back to district court without taking any action, and let that process unfold over the next few weeks.

The issues before the court are complex. They go beyond the White House’s power to set immigration policy. To start, Washington and Minnesota argue that they have legal rights to sue and stand up for their residents—thousands of foreigners with legal residence, from community members, to employees at major corporations like Microsoft, to students at state universities. The Justice Department countered that the states didn’t have any such standing to sue.

The states then made a series of claims about how Trump’s travel ban was unconstitutional. The executive order—as signed by Trump, and critically, it has not been updated nor replaced—didn’t just apply to foreigners with visas to visit the U.S., whether family members, students or business people. It also banned legal residents, who have rights in U.S. courts. That blanket prohibition has been seen by several federal courts as violating constitutional rights to due process, or access to the court system to redress legal grievances.

The states also argued that Trump’s targeting of Muslims—based on innumerable campaign statements where he called for a “total and complete” travel ban from Muslim countries—was a major violation of the Constitution’s Establishment Clause, which bars the federal government from persecuting anyone based on their religion. The states also said that Trump’s executive orders exceeded his authority under several laws passed by Congress.

Against this backdrop, each side had 30 minutes before the three-judge appeals court panel. The Justice Department went first, with Flentje defending Trump. After repeatedly asserting no district court should “override the president’s judgment” on national security, Judge Michelle T. Friedman interrupted, “Are you saying the president’s decision is unreviewable?” Flentje replied, “Yes… with constitutional limitations.” When asked what those limitations were, he didn’t say but reiterated that the president has power to “exclusively exclude aliens” and “the state of Washington doesn’t have these kinds of constitutional interests.”

Noah G. Purcell, Washington’s solicitor general, argued otherwise. He repeated that families, students, employers, and state institutions like universities all had been hurt by having their lives and business upended by the sudden travel ban. He flatly rejected Flentje’s contention that the TRO suspending Trump’s travel ban nationwide was too broad because the modern realities of travel to and from his state and Minnesota criss-crosses the entire country.

Purcell was given a hard time by Judge Richard R. Clifton, who was “not entirely persuaded” that Trump’s executive order was a Muslim travel ban, saying the seven countries “represent only a small percentage of the Muslims worldwide.” Earlier, Flentje made that point, urging the court not to look at anything Trump had said during the campaign or on Twitter—but only at the words contained in the executive order itself. Purcell replied that Trump repeatedly called for a “complete” ban on Muslims and their suit continued numerous citations of such statements in the media. “His advisers said on television they were asked for a way that [the executive order] would be legal.”

Intriguingly, the judges did not press Purcell or Flentje on Trump’s national security authority. Instead, they focused to the issues of standing to sue, the harm done by the executive order, the scope of the restraining order, and the anti-religious bias prohibition in the Constitution’s Establishment Clause. When Judge Friedman gave Flentje a few minutes for final comments, he reiterated that Trump’s orders were “a national security determination by the president” and Trump had congressional authority to issues these immigration decrees.

But then she asked if the lawsuit challenging the order shouldn’t be allowed to proceed at the district court level to determine if the executive order intended to deprive its targets of their rights under First Amendment and the Establishment Clause. The ensuing dialogue was revealing.

“Shouldn’t the case proceed, perhaps to discovery, to see if that [anti-Muslim bias] really was the motivation or not?” she interrupted.

“We’re not saying the case shouldn’t proceed,” Flentje said, “but it is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles [where Trump repeatedly called for a Muslim ban]. And that’s what has happened here. That is very troubling second-guessing of the national security decision made by the president.”

“Stop. Stop. This is Judge Clifton,” he interrupted. “Do you deny the fact that the statements attributed to then candidate Trump and to his political advisers, most recently Mr. Giuliani, do you deny that those statements were made?”

“Judge Clifton—I, no, I would note that Judge Robart [who issued the TRO] said he wouldn’t look at campaign statements,” Flentje replied.

“That’s a different point,” Clifton said. “I understand the argument they shouldn’t be given much weight. But when you say we shouldn’t be looking at newspaper articles, we’re all on the fast track here. Both sides have told us this is moving too fast. Either those kind of statements were made or they we not… If they were made, it is potential evidence. It is the basis for an argument. I just want to know what’s on the table.”

“Well, those are in the record,” he replied.

Moments later Clifton asked his final question, why the federal appeals court should be in the position of having to sort out what the White House’s order meant—when after it was sloppily issued, Trump’s staff, reacting to protests, said the ban no longer applied to legal permanent residents traveling from the seven counties. (Trump hasn’t updated the order to reflect that.)

“Why shouldn’t we look to the executive branch to more clearly define what the order means, rather than have to look through the lens of these subsequent interpretations?” Clifton asked.

Flentje would not acknowledge that the travel ban was sloppily drafted. But then he read from the Justice Department’s reply brief, suggesting that if there was to be a TRO against Trump’s executive order, that, “At most, the injunction should be limited to the class of individuals on whom the state’s claims rest—previously admitted aliens who are temporarily abroad now, or who wish to travel and return to the United States in the future.”

In other words, Flentje’s closing comments strongly suggest that the Justice Department knows that Trump’s blanket Muslim travel ban will not stand. The question is how much of it will be allowed to resurface, and when—immediately, if a federal appeals court rules that way; or several weeks or months from now, after the litigation plays out in federal courthouses.

Steven Rosenfeld covers national political issues for AlterNet, including America’s democracy and voting rights.

IMAGE: Chicago area immigration attorneys listen through their laptops to the court hearing on immigration ban at O’Hare International Airport in Chicago, Illinois, U.S. February 7, 2017. REUTERS/Kamil Krzaczynski



  1. Aaron_of_Portsmouth February 9, 2017

    Trump has never been gung-ho about American values aside from the opportunities and loopholes it provides for those like him who lust for money and more money. And he certainly was never concerned about terrorism until he saw terrorism as something to use in order to help him add another feather to his giant ego cap. He’s totally clueless about the nationalities of most of the 9/11 plotters and participants who hailed from Saudi Arabia, a close business ally of Trump’s, otherwise he would have put a ban on Saudi Arabia as well. So, Trump’s ban isn’t against All Muslims, just on those he doesn’t have a direct business connection with while the other nations are just fodder to him to appease his uninformed minions across America.

    1. Robertatbellamy February 9, 2017

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  2. Eleanore Whitaker February 9, 2017

    Well sure…Every adult picks a fight with a judge and degrades their position and then when the next situation arises where they have to appear before a panel of judge expects the judges to “YES SIR! We admit the Judicial System won’t allow you to break laws…but what the hell YOU ARE DONALD TRUMP…Must have slipped our minds that the name TRUMP is synonymous with smear tactics, floods of lawsuits and a sister who is a SO CALLED judge too! But we’ll let you be the ONLY LAW in this country.”

    Pick a fight with the Judiciary and they will make sure you don’t ever forget how many judges in the country can take you down. What next Judge Mary Ann Trump for the SC?

    Even if the judges dismissed his maniacal love of Tweeeeeeeeeeeeeeeeeeeeeeeets that go online to the entire world, the fact remains that the minute he singled out “Islam” or “Muslim” as his keywords to ban 7 countries but NOT ALL of the ISLAMIC, MUSLIM countries and left people who have green cards and jobs in a lurch, this mullet headed imbecile will bash his orange head into a wall before he will ever admit he screwed up.

    Fight fight fight fight fight…That’s ALL Trump knows. It is high time to uncover all the dirt people in NJ and NY have known about Trump for decades. Let his 40% supporters see what he is REALLY like.

    1. ivory69690@yahoo.com February 9, 2017

      the only laws DONNY DUMP knows is the ones that let his screw people out of their money

    2. idamag February 9, 2017

      Two books about trump are out. One was written by a guy who worked for him for years. He has been up to a lot of hanky panky in his day, The other one was by David Cay Johnson. trump has gotten by with so much crap over the years. His father was an illegal alien and a racist. He was reputed to have ties to the mob. Trump has been photographed with a member of the gotti gang.

    3. dpaano February 9, 2017

      Unfortunately, Eleanore, they are too blind and too brainwashed to see what he’s really like and that’s the problem!! Not sure how much will have to occur before they ever see the light, if that EVER happens! I can guarantee that most of them have never met a Muslim, so they only know what they’ve heard from FAUX News, CNN, Breitbart, etc., and not from what they’ve learned on their own!

  3. itsfun February 9, 2017

    No judge should be deciding our foreign policies or national security.

    1. Eleanore Whitaker February 9, 2017

      Wrong asshat. EVERY JUDGE in the US has the right to decide foreign policies and national security when it violates the US constitution. So much for what you know.

      Banning 7 Muslim countries and not the other 6 only damns Trump’s case that he claims isn’t about religion. Saudis are not Muslims? Egyptians are not Muslims? UAR isn’t Muslim?

      Get off that phony BS act. It’s bad enough we see if every day in Trump. The ONLY reason he EVER banned those 7 countries was so bloat his oil interests in Saudi Oil. And when that comes out you and your assbagger president are going to explain that foreign deal and the risks to our national security…to the SC. Better bone up on your legal defense. SuperBoyTrump’s U.S.S. Titanic is sinking fast.

      1. idamag February 9, 2017

        itsfun is a not-so-bright junior high school student. He is from one of those states whose education is on the bottom for quality. He is not useful to society. The world would have been better off had his mother gotten an abortion.

      2. ps0rjl February 9, 2017

        I agree Eleanore. Trump cannot for any reason violate the laws of the land no matter how much he and his followers think he can. The President has the duty to execute the laws but the Judicial arm has the duty to decide if a law or executive order is legal.

        1. Eleanore Whitaker February 10, 2017

          The entire case came down to religion. The mistake Trump made was attempting to single out ONLY Muslims in 7 countries, not ALL Muslims from ALL Muslim countries. Two countries he omitted besides the UAR, Saudi Arabia and Egypt, are notorious for ISIS and al Qaeda cells, Indonesia and Nigeria.

          The courts do not rule on a president’s decisions when they are based on “personal preference.” If he can’t prove those 7 countries are as much a threat as ALL other Muslim countries, not even the SC will stand by his travel ban.

          But, as Spicer said, they plan to “get rid of the girls” on the SC. Of course, that IS PURE Trump.

          When I watched the CSpan Congressional meetings this week, I got the idea of “why” Trump is really going after Syria. Two of the military experts who gave reports stated that they know Putin is arming the Afghan terrorists and also Assad in Syria. The pathetic thing is that Trump and Putin are in this together and that ban is a veiled sanction to those 7 countries.

          Two five star generals stated they believe that Russian aggression in the Ukraine, coupled with support for Assad whose government forces are responsible for many more of the estimated 250,000 deaths in the four-year-old conflict than are the Islamic State militants and rebel groups, analysts and monitoring groups say. The figures, they say, underscore how Assad’s indiscriminate use of violence has empowered the Islamic State and other extremist groups and forced millions of Syrians to flee to neighboring countries and Europe. Putin openly supports this. Trump openly supports Putin. So, who really is the biggest threat to national security if not Trump and the Republicans?

    2. jmprint February 9, 2017

      WRONG, but what is right is that no judge has the right to tell a women what her body must do.

      1. itsfun February 9, 2017

        Federal Judges are not elected officials. The President has the constitutional authority to protect our national security

        1. Independent1 February 10, 2017

          Federal Judges are appointed by an elected official – the President (and the one Trump is disputing was appointed by GWB) – So essentially, by appointing that judge, GWB was giving that Judge the right to make judgements in his name (GWB’s); just as we give legislators a right to decide on legislation that controls our lives by us voting for them.

        2. owmarly February 10, 2017

          And the Federal Judges have the power to uphold the constitution,the basis of all our laws!

          1. itsfun February 10, 2017

            They didn’t rule on the constitutionally of the executive order. They completely ignored the statue and never said the word unconstitutional. It is a court that has had 80% of its decisions overruled. The 9th district court has turned into a arm of the Democratic Party.

          2. jmprint February 11, 2017

            And the Trump administration into a arm of the Russian agenda.

        3. jmprint February 11, 2017

          Yes but instead he is provoking the nation.

  4. ivory69690@yahoo.com February 9, 2017

    the question was IS THE DUMPSTER LOSING IT ? cant lose what he never has a working brain instead of a deranged brain ( PRETTY MUCH THE SAME AS ITSFUN ) how theres a true brain dead DONNY DUMP FOLLOWERS right coward tough wannabe guy BUT YOU CANT HIDING BEHIND YOUR KEY BOARD ohh ya for your child mind this is for you blaaaaaaaaaaaaaaaa blaaaaaaaaaaaaaaa blaaaaaaaaaaa . and for the rest of the cool people on here (itsfun not being one ) ///thinking about this what this judge said about the DUMPSTER that throw his name in the ring should really enlighten all the other judges on the true issue going on here . these 3 judges should widen their scope on DONNY DUMP and use every thing the can to come up with the understanding that the DUMPSTER is a paranoid schizophrenic bully clown living in his own deranged world with inside his all but empty head (only filled with his pea brain ) and with this for the sake of the country and the world . and then come up with a known an analyses of his psychological problem . come on now this clown cant walk and chew gum at the same time its too much for his pea brain to handle all at once . judges of the land now is your chance to so something good for the country , world & all the American people . request (and you will be rightly so to do this) a full psychological evaluation examination . of this wacko coo coo bird . judges he isn’t going to get any better (only worse ) so save ones now before he is to d bring hard to many . doing a covert attack with navy seals and doing it over a dinner making those plans isn’t the way that job should be done . a seals life was loss might it had been anyways ? who knows ? planning things (anything) is better then just running into something just because a clown what his fix of his addicted personality (like a junky ) to attention . judges cant you all see this whole thing is just THE DONNY DUMP CLOWN SHOW . UN- reality TV BUT WAY TO REAL for the country and the world . judges you have the ball now . you have the dissection to look deeper into the true problem here and should for the sake of all .

    1. idamag February 9, 2017

      My thoughts, exactly. He can’t lose what he didn’t have. He is useful to the fascists and when they have destroyed democracy, they will just get rid of him and put their own dictator in office, unless he remains useful.

      1. dpaano February 9, 2017

        I agree….if you read Bannon’s comments while at Breitbart…his ONLY goal is to uproot the current administration and our government. If that doesn’t scare most of the citizens of this nation, then I’m not sure WHAT would scare them! It certainly scares the bejeezus out of me!

  5. idamag February 9, 2017

    The Republican Party has no qualms about violating the Constitution. They have done it before. It won’t be long until they have discarded everything but the Second Amendment. Fascists.

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