An US appeals court that questioned whether President Donald Trump’s travel ban discriminates against Muslims, witnessed steep grilling of lawyers by a federal judges bench, a media report said on Wednesday.
As the appeals court on Tuesday night sought to determine whether to lift the nationwide halt against it, lawyers from the Justice Department and Washington state came under heavy firing from the bench, CNN reported.
The hearing conducted by telephone contained moments of high drama as one of Trump’s signature policies against refugees and visitors from seven mainly Muslim countries, was challenged by two states and numerous advocacy groups.
The Trump administration argued the courts have improperly inserted itself into the national security sphere.
“This is a traditional national security judgment that is assigned to the political branches and the President,” August Flentje, special counsel to the assistant attorney general at the Justice Department, told the bench from the Ninth Circuit Court of Appeals.
Flentje faced skeptical questioning from the judges, who pressed the DOJ lawyer about what evidence the government was presenting that the travel ban is necessary.
Judge Michelle T. Friedland out of the gate asked if the government could point to any evidence “connecting these countries with terrorism.”
Judge Richard R. Clifton seemed sympathetic to the fact that the states have the standing, or ability, to bring the suit against the administration.
Clifton called the government’s argument “abstract,” noting there are existing procedures to vet individuals for visas.
Washington state Attorney General Noah Purcell, representing his state and Minnesota, which are challenging the Trump executive order, defended the role of the courts.
“It has always been the judicial branch’s role to say what the law is and serve as a check … has never been more important than it is today,” he said.
If the court were to lift the injunction it would throw the country back into “chaos,” he said.
The Trump administration can’t show that it will suffer irreparable harm if the injunction is allowed to remain in place, while state residents would suffer and state governments have lost tax revenue as a result of the executive order, Purcell said.
But Judge Clifton was skeptical on the state’s argument, wondering how many people in Washington would be harmed by the executive order.
“I suspect it is a small fraction,” he said.
Clifton also wondered about whether the injunction could be limited to people who were in the US or would have a connection to the US.
All three judges pressed Flentje, the DOJ lawyer, on whether the President could simply say “we’re not going to let in any Muslims”.
They asked: “Could he do that?” and “Would anyone be able to challenge that?”
Flentje repeatedly argued, “that’s not the order.”
But Clifton continued to press, saying, “We’d like to get to an answer of that question.”
Eventually, Flentje capitulated and said a US citizen with a connection to someone seeking entry might be able to challenge.
Purcell argued: “You don’t have to prove it harms every Muslim — you just need to show the action was motivated in part by animus.”
“There’s rather shocking evidence of intent to discriminate (in this case),” he added — alluding to statements from Trump himself.