A federal appeals court is hearing oral arguments Tuesday evening to determine whether to lift a nationwide injunction against President Donald Trump’s travel ban against citizens of seven Muslim-majority countries.
The hearing conducted by telephone contains high drama, as one of Trump’s signature policies is challenged by two states and backed by numerous advocacy groups. Trump has also repeatedly attacked the federal judge who blocked the ruling last Friday.
Judge James Robart of the U.S. District Court for the Western District of Washington suspended key parts of the executive order nationwide Friday, clearing the way for resumed travel from the seven countries. The executive order bars citizens of Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the U.S. for 90 days, all refugees for 120 days and indefinitely halts refugees from Syria.
In response, Trump fired off two tweets in response attacking the judge. In one he referred to Robart as a “so called” judge. In another, he said, “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
Tuesday’s hearing is only on the question of the injunction, not on the constitutionality of the executive order. A ruling is expected later this week, according to the court.
And no matter what its ruling here, the loser is likely to appeal to a larger panel of judges on the Ninth Circuit or go straight to the Supreme Court.
Hearing by phone
Three judges of the Ninth Circuit Court of Appeals — two appointed by Democratic presidents, one by a Republican — are conducting the hearing by telephone.
Solicitor General Noah Purcell will present the arguments of two states, Washington and Minnesota, and urge the court to leave the injunction in place. In court papers Purcell has argued that the executive order “unleashed chaos” when it was signed January 27.
The Justice Department says Trump’s order “is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees.” August Flentje, special counsel to the assistant attorney general at the Justice Department, will argue for the government.
The judges are: William C. Canby Jr., an appointee of President Jimmy Carter; Judge Michelle T. Friedland; who was appointed by President Barack Obama; and Judge Richard R. Clifton, an appointee of President George W. Bush.
The Ninth Circuit has a reputation as one of the most liberal in the nation to the point where some Republican lawmakers have even pushed to split it up in an effort to limit its impact.
Kari Hong, an assistant professor at Boston College Law School, said Tuesday’s hearing is likely to be more technical in nature than philosophical.
“The Ninth Circuit is often called a liberal court, but the issues they have to figure out today are dry and technical ones relating to standards of review and the deference owed to the lower court,” Hong said. “Those issues will be resolved without regard to political preferences.”