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A lawyer for US President Donald Trump’s administration faced tough questioning by appeals judges on Tuesday as they weighed whether to unfreeze implementation of a controversial travel ban, although at least one judge seemed concerned about whether the freeze had gone too far.
A ruling will come “as soon as possible,” said Judge Michelle Friedland at the conclusion of the hearing, although the 9th Circuit said in a previous statement that it was unlikely to come down today – “but probably this week”.
The questions came fast and furious during the roughly hour-long hearing before the 9th Circuit Court of Appeals, and, unusually, the public was allowed to listen into live audio, underscoring the tremendous public interest in the whirlwind appeal that was launched within hours of a ruling last week that put a halt to the implementation of the executive order nationwide.
A lawyer for the Justice Department, August Flentje, defended the White House’s previous arguments that the president enjoyed sweeping powers over who to allow into the US. Either the order freezing the ban should be lifted immediately, he argued, or it should be narrowed so it did not apply across the entire country. “Congress has expressly authorized the president to suspend entry of categories of aliens,” he said, calling the order “plainly constitutional”.
But two of the judges – Michelle Friedland, appointed by a Democrat, Barack Obama, and William Canby, appointed by another Democrat, Jimmy Carter – seemed unclear whether there was really any pressing national security concern that would make it unwise to allow the visa and refugee process to stay as it was pre-ban, until the entire case has been resolved by the lower court.
They also seemed receptive to the argument from Washington state – which, along with Minnesota, is leading the case against the Trump administration – that it has already been injured by the order, by things like university students or faculty being shut out or the loss of taxpayer revenue. That lawyer, Noah Purcell, urged the court to serve as a check on Mr Trump’s “executive abuses”.
The third judge on the panel, Richard Clifton, who was nominated by President George W. Bush, a Republican, appeared more skeptical of the states’ arguments that the order was discriminatory based on pre- and post-campaign statements made by Mr Trump and some of his advisors about a desire for a “Muslim ban”.
“You can allege anything,” he told Mr Purcell, who represented the states, noting that many of the world’s Muslims would not be affected by the order and that previous presidents had limited immigration from certain countries, such as Cuba. “We treat people from North Korea differently than we do people from France,” he said.
But still, Clifton expressed his “serious concern” about the scope of the executive order, particularly as it applied to legal permanent residents (although that portion of the order has been walked back, for now).
No matter the outcome, the appeal is likely destined for the US Supreme Court, as Mr Trump vowed to take the case as far as necessary in order to preserve what he has described as “very important for the country.”