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Federal appeals court judges question Trump’s authority on travel ban

UPDATED: Tue., Feb. 7, 2017

Karen Shore holds up a sign outside of the 9th U.S. Circuit Court of Appeals in San Francisco, Tuesday, Feb. 7, 2017. A panel of appeals court judges reviewing President Donald Trump's travel ban hammered away Tuesday at the federal government's arguments that the states cannot challenge the order. (Jeff Chiu / AP)
Karen Shore holds up a sign outside of the 9th U.S. Circuit Court of Appeals in San Francisco, Tuesday, Feb. 7, 2017. A panel of appeals court judges reviewing President Donald Trump's travel ban hammered away Tuesday at the federal government's arguments that the states cannot challenge the order. (Jeff Chiu / AP)

The nationwide temporary halt to President Trump’s order limiting travel from seven mostly Muslim nations remained in place Tuesday while a three-judge federal appeals court panel weighed the limits of presidential power.

The panel said it will make its ruling “as soon as possible” on the federal government’s request to throw out or at least scale back the temporary restraining order issued last Friday in Seattle. In that decision, U.S. District Judge James Robart agreed with Washington state that the presidential order could violate constitutional rights.

Washington has been joined by Minnesota in the lawsuit and has support from 17 other states and the District of Columbia, as well as technology companies and civil liberty groups. They’re asking the appeals court to leave Robart’s temporary order in place until he can hold a full hearing where more evidence can be produced. Robart could then decide on whether a more permanent order should be issued.

The Trump administration is asking the panel to overturn Robart’s order or narrow it so that the travel ban applies to everyone but permanent U.S. residents from the seven countries who are traveling abroad and want to return, or those in the United States who want to leave temporarily and then return.

Whatever the panel decides could be appealed to the U.S. Supreme Court.

The appeals court panel grilled a special assistant U.S. attorney general about the limits of the power Trump or any president could wield, and focused on whether the executive order amounted to a ban on Muslims entering the country.

“Could the president simply say in the order ‘We’re not going to let any Muslims in?’ ” Judge William Canby asked.

“That’s not what the order does,” replied Justice Department lawyer August Flentje.

When Canby asked again, the attorney said a U.S. citizen with some connection to a person denied entry on that basis might be able to challenge such an order, but Washington, as a state, couldn’t.

Washington is alleging that a ban on Muslims is a motive behind the executive order, said Judge Michelle Friedland, who asked a third time if such a ban was possible.

Flentje replied that the courts can’t block an order the president makes for national security “based on some newspaper articles.”

Judge Richard Clifton asked if the federal government was denying Trump, as a candidate, made such statements. “I understand the argument they shouldn’t be given much weight. But either they were made or they were not,” Clifton said.

Flentje said he wasn’t denying the statements were made.

But Clifton also sharply questioned Washington Solicitor General Noah Purcell about the state’s claim that the executive order amounts to a Muslim ban, considering only about 15 percent of the world’s Muslim population lives in the seven countries mentioned in the order.

Purcell said he hadn’t done the math, but argued the state doesn’t need to prove the order harms every Muslim or only Muslims. After Trump’s earlier calls for a ban on Muslims, the executive order is a way to implement a narrower ban, he contended.

“We’re supposed to take your word for it?” Clifton asked. “You can allege anything. That’s not the standard.”

It would be possible to identify the countries without a religious intent, the judge added. “Do you deny there is concern for people coming from these countries?” he asked.

Purcell replied that Congress and the previous administration already addressed those concerns by removing visa waivers.

The Justice Department lawyer also argued that, “The president is the official that is charged with making those judgments” about the risk posed by groups of people entering the U.S.

Judge Friedland asked whether that judgment is subject to review.

Yes, replied Flentje, at least when it comes to a determination of risk from those countries. Even if there are constitutional questions of religious freedom and equal protection, as Washington state contends, the review would be limited, he added.

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