Trump’s Ban Tests Executive Authority
Appeals Court Hears Case to Reinstate Travel Ban
Two lawyers, both alike in dignity
In fair San Francisco, where we lay our scene
From ancient grudge break to new mutinous tweets
Where civil lawyers argue executive orders are “unclean”
A pair of star-cross’d lawyers take their briefs
— Shakespeare, never
Following the implementation of Trump’s travel ban by executive order, the country has borne witness to a whirlwind of tweets and litigation. Initially, the order wasn’t called a “ban”, but billed as “extreme vetting”, despite Trump calling it a ban. On February 4th, US District Judge James Robart declared a temporary restraining order of the executive order’s controversial provisions, setting the stage for Tuesday’s legal argument as to whether Trump’s order can stand while facing legal challenges.
This represents a test of how far Trump can stretch the legal authority of the executive branch. Trump even went so far as to challenge the authority of the judge who suspended his order.
With this incendiary tweet, Trump is challenging the legitimacy of a federal circuit judge in good standing with 16 years on his current bench, appointed by George W. Bush, for those keeping score at home.
Tuesday night saw a three-judge panel hear oral arguments from August Flentje, special counsel to the assistant attorney general at the Justice Department, and Washington state’s Attorney General Noah Purcell. Flentje defended the ban by saying that, “ “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.” The judge’s panel challenged the governments’ position, asking for evidence that these countries were connected with terrorism to validate the concern. Flentje cited the President’s “…national security judgment about the level of risk” and Congress’ identification of these countries for concern.
Purcell argued that reinstating the order would reinstate chaos and invited the court to decline that invitation while the order was argued further. Purcell pushed back on the government’s arguments, claiming they had shown “no clear factual claim or evidentiary claims from what that irreparable harm would be,” if the order weren’t immediately reinstated.
Central to the discussion is the question, “Does the order actually discriminate against Muslims?” Trump’s order bars citizens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen — countries flagged by the Obama administration for restrictions, but mysteriously omitting those countries where Trump has business ties. Flentje ceded to the panel that a US citizen with a connection to someone seeking entry would be able to challenge the order, if it were deemed a Muslim ban. One of the judges pointed out that a “vast majority of Muslims weren’t affected” by the travel ban, but each of the countries enumerated is Muslim-majority, and the order carves out exceptions for religious minorities from those countries, prioritizing refugee claims based on religious persecution. Trump had also asked Rudy Giuliani how to legally implement a Muslim ban. These circumstances certainly cast doubt onto the intent of Trump’s order, and merit further research and legal consideration.
The court is expected to render a verdict this week if the temporary restraining order will stand.
