North America Editor Kate Burrows-Jones explains in details the Administration (Department of Justice case) and the counter argument put by the Washington State Attorney. Appears in Inside British Politics
In an emergency motion, arguments were heard last night by the 9th Circuit Court of Appeals whether to uphold or turn a lower court decision by Seattle Federal District Court Judge (Justice) James Robart which had previously placed a restraining order against President Donald J. Trump’s Executive order banning travel from seven countries. The court ruling is not expected today. Judges ( justices) Clifton, Canby and Friedland presided by
telephone and were Live-streamed to the public in a conference call with the Government’s Special Counsel for the Department of Justice, August Flentje, and the plaintiff, Noah Purcell, Solicitor General for the State of Washington in the case of State of Washington and State of Minnesota v. Trump.
Mr Flentje’s main argument is that the president is granted the right, delegated by congress by 212 (f), to suspend entry of classes of aliens when considered detrimental to the interests of the United States. He argues that the [lower court] Judge made an error in placing a Temporary Restraining Order against the executive order.
He said the executive order is a temporary, 90 day pause of entry of individuals from seven countries put into place during a review period of the screening process. The countries were chosen by Congress, which had previously determined that the countries pose special risks in terms of terrorist infiltration into the United States. These determinations, the strongest argument he could offer, said Mr Flentje, were made in 2015 and 2016 by Congress and the former president. The reason they were chosen was, a statutory factor including that foreign terror organisations have significant presence in the country or the country has served as a safe haven for terrorists.
Mr Flentje told the Judges the Government seeks to ensure adequate standards for visa screening. The move made is constitutional. The Government asks that the order be stayed pending a review by the court.
Mr Flentje said the district court’s decision caused irreparable injuries. The government, he said, must assess risk in balancing the interest in welcoming people to the country and the interest in keeping the country secure so the “risk of terrorism is acceptable.” He continued, “The president struck that balance, and the district court’s order has upset that balance. This is a traditional national security judgment that is assigned to the political branches and the president and the court’s order immediately altered that.” “It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles,’’ Mr. Flentje said, “That is some very troubling second guessing.’’
Mr Flentje was repeatedly interrupted for questions. Judge Friedland asked for evidence of the risk. Mr Flentje answered that the executive order includes findings of the role of screenings, that foreign born individuals have been implicated in crimes since 9/11, and deteriorating conditions in those countries creates further problems in security.
Mr Flentje said that the president’s power to exclude aliens is virtually unlimited. This prompted Judge Canby to ask, why the executive order isn’t a violation of constitutional protections against religious discrimination, “Would the president have legal authority to impose an outright ban on Muslim entry?” Mr Flentje replied, “This is a far cry from that situation.”
It is so, that the president is granted sweeping powers to ban aliens from entry according to 212 (f) of the Immigration and Nationality Act (INA.) This is the law the Government’s attorney refers to, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
The text of 212 (f) and case law place no limit legally on the President’s power to exclude aliens as long as he believes the entry is “detrimental to the interests of the United States.”
The statute does not concern itself with what the President may consider detrimental, when or how the suspension is issued, or how long it lasts. The very limited case law on the subject supports the president’s power and does not detract from it.
The plaintiff, Mr Purcell made two arguments on a Constitutional basis, that the executive order violated the Establishment Clause,
which harms everyone in the States by favoring one religious group over another, and that the order violates the Equal Protections Clause which he said “relies on discriminatory animus.” He used the example that it would allow some to receive visits from relatives while others could not. The citizens, Mr Purcell argued, themselves have Constitutional rights to see their relatives, even while the alien may not. As in a prior case, Kerry v Din,”or Din” the US citizens who have relatives abroad also have rights to see them. The States, he argued have the rights to have students and visitors come to their Universities. He also said that if the Government were to address the issues they said they would resolve regarding green card holders and visa holders, it would not address all of the claims of those who live and work in the US.
The Judges asked if the plaintiff was relying on Lemon or Larson in the Establishment Clause. He said Larson. In the case of Larson, one religious denomination can’t be ‘officially’ preferred over another religion, Larson v. Valente, 456 U.S. 228, 244 (1982). Mr Purcell argued that Larson is a on the a surface neutral law, but actually favored one group over another on religious grounds. Applying Larson, he said there is strong evidence in this case that favors one religion over another. He said he feels they prevail in Lemon as well, but has no time to make the argument, that it is included in his brief for the lower court. Judge Friedland then asked, “If we were to agree with you about Larson, is there any reason to consider your equal protection claim or are those two claims essentially redundant?” Mr Purcell answered, “If you agreed with us about Larson there wouldn’t be a need to agree on Lemon.
Judge Clifton pushed back on the religious discrimination claim that
reaches the two clauses Mr Purcell claims are violated. With just seven countries identified, Judge Clifton asked what proportion of the “adherents to Islam worldwide are citizens or resident of those countries…my quick penciling suggests it’s something less than 15%.”
Mr Purcell had not done that calculation, he said.
Judge Clifton continued “all those countries are countries that have been previously tagged as subjects of concern about terrorism, granted it’s because of perhaps radical Islam sects, so there might be a religious motivation behind the terrorism, but I have trouble understanding how why we’re are supposed to infer religious animus, when in fact, the vast majority of Muslims would not be affected as residents of those nations and where the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny.”
Mr Purcell answered that according to case law, to prove religious discrimination, he does not have to show it harms every Muslim, but instead he must prove that it is motivated in part to harm Muslims, to prove intent to harm.
Justice Clifton asked Mr Purcell how he would do that if the “vast majority of Muslims are unaffected?” Mr Purcell said he could do that with evidence of intent. We use “the public statements from the President and his top advisers, reflecting that intent are strong evidence especially at this pleading stage.” responded Mr Purcell. He said the private statements, in the discovery stage might tell more.
Judge Clifton asked him to show where in prior cases the proportion of those affected was less than 15%. “I have not thought about the case in those terms.” answered Mr Purcell.
“Do you deny that there is in fact concern about people coming from those countries separate and apart from what their religion might be, because as Congress and the previous administration have concluded, those countries are a concern from a terrorist perspective.” Asked Judge Clifton.
The Congress and the President determined those countries should not get a waiver from a visa requirement “that is eminently different than a complete ban from travel to this country.” replied Mr Purcell.
Judge Clifton asked, “Do you assert that that decision by the previous administration and by Congress was religiously motivated?”
“No your Honour, no, we are not asserting that at all,” replied Mr Purcell.
“Would it be possible to consider these countries could be the subject of special treatment without having religious motivation or discriminatory intent behind it,” asked the Judge.
Mr Purcell went on to site McCreary in assessing the Establishment Clause. He said, is not Constitutional if done with other intent? We have alleged plausibly in great detail, “we should be allowed to go forward on that claim,” having demonstrated a likelihood of success. He was asked to prove that he could proceed with the case of intent and would have a likelihood of success. He responded that the President called for complete ban on entry of Muslims.
The judge asked, “Is this, that ban?”
He answered, “no we’re not saying this is a complete ban.” He mentioned that Mr Trump’s adviser said on TV that he was asked to implement a “narrower thing that would be legal.”
After the Executive order was signed, former New York Mayor Rudy Giuliani was interviewed on 28th of January by friend and colleague, Fox News host, Judge Jeanine Possi. She asked him about the ban, if it had to do with religion, and how the seven countries were decided.
“I’ll tell you the whole history of it, So when he [Trump] first announced it, he said, ‘Muslim ban.’ He called me up, he said, put a commission together. Show me the right way to do it legally. I put a commission together with Judge Mukasey with Congressman McCall, Pete King, a whole group of other very expert lawyers on this. And what we did was, we focused on, instead of religion, danger — the areas of the world that create danger for us….which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there is substantial evidence that people are sending terrorists into our country.”
It was unclear when the phone call Giuliani took place and when the commission began its work. (see No Tea For Trump)
So Mr Purcell had constructed his argument that the there is evidence of anti-Muslim intent, but when pressed by the Judge if he had enough evidence to show that, Mr Purcell pointed only to comments Mr. Trump has made, and that he had not yet had the time to make the discovery. The Judge asked, “am I to believe you just because you say so?”
“It’s remarkable to have this much evidence of intent, without any discovery,” Mr. Purcell replied. “What we have alleged are plausible allegations are taken as true, said Mr Purcell.
The judge was concerned over the likelihood of success and the ability of Mr Purcell to prove intent.
“That cannot possibly be true,” said the Judge,
“Were supposed to take your word for it. You don’t really mean that do you? Do I have to believe everything you allege and say that must be right?”
Justice Friedland stepped in to help, asking Mr Purcell, you have show these exhibits? Mr Purcell, relieved said, yes.
Part of the case that was questioned by the Government was if the states have the standing to challenge the order, or if the individuals whose rights were violated should present the case. Can the States represent individuals? Mr Flentje said the states’ suggested evidence shouldn’t carry much weight.
Justice Clifton pointed out several past court rulings that appear to support the state’s ability to bring a lawsuit. Mr Purcell commented that State Universities had a role in bringing the suit as well. “In this case, the state of Washington is claiming it’s going to hurt the university… That sounds very much like the same kind of right that was asserted” in a prior case,” answered the Judge.
The appeals court judges also pressed Mr. Flentje to explain why the executive order should not be considered a violation of constitutional protections against religious discrimination.
It was important for the Judges to clarify the powers of the president, “Could the president simply say in the order we’re not going to let any Muslims in?’’ asked Judge William Canby.
“That’s not what the order does,’’ Mr. Flentje replied. “This is a far cry from that situation.’’
At one point, Mr. Flentje was scrambling to answer the judges’ questions, saying, “I’m not sure I’m convincing the court.’’
Justice Clifton, voiced skepticism about claims the executive order was discriminatory. He pressed a lawyer for the state of Washington, which filed the lawsuit against the government, to explain why the president would not have the authority to bar people from countries that pose a significant risk of terrorism. “I have trouble understanding why we’re supposed to infer religious animus,’’ said Judge Clifton. “The concern for terrorism with those connected to radical Islamic sects is kind of hard to deny.’’
There was a question of which party was upsetting the status quo. “At this point it’s now the federal government that’s asking the courts to upset the status quo,’’ Mr. Purcell said. “Things are slowly returning to normal before the chaos of the executive order.’’
Judge Clifton wraps things up by asking why, if the government is asking for a narrower ruling from the court, it doesn’t also narrow the executive order to explicitly carve out green card holders and visa holders. How would I write such an order, he asked,“Why shouldn’t we look to the executive branch to more clearly define what the order means?” Mr. Flentje says the White House counsel provides a definitive interpretation of the order. The White House Counsel speaks for the President in this case, “At most the injunction should be limited to the class of individuals on whom the States’ claims rests, previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”