On Thursday, a federal appeals court ruled to uphold a temporary restraining order against President Donald Trump’s travel and immigration ban, according to The New York Times. That order barred entrance to the United States from seven Muslim-majority nations and for refugees worldwide.
Justice Department attorney August Flentje fought to reinstate the president’s ban on the grounds that the president has the sole authority to curtail immigration when deemed a threat to national security.
Judge James Robart, a judge for the U.S. District Court in Washington state, granted the initial restraining order a week after travelers from Iran, Iraq, Libya, Somali, Sudan, Syria and Yemen were left in legal limbo after arriving with visas that had been cancelled while they were in the air, as reported by The New York Times. In response, protesters flooded airports in support of those affected. Robart’s decision was appealed in Tuesday’s hearings, which took place at the U.S. Court of Appeals for the Ninth Circuit, in San Francisco.
Robart’s decision and the hearings in the federal appeals court pointed criticism from Trump, who questioned the court’s competency and political motivation during a speech to sheriffs and police chiefs in Washington, D.C.
During Flentje’s arguments, Judge Michelle Freidland, one of three judges in the appeals court, pressed the Justice Department lawyer for evidence that visa holders and vetted refugees meet the criteria for a national security threat. Unable to reference evidence that had been submitted to the record, Flentje said, “I am not sure I am convincing the court.”
Shifting to arguing that the Washington state court’s restraining order itself is illegal, Flentje pleaded for the appeals court to lift the order “even if the court thinks some applications of the [travel ban] are problematic.”
In a written brief submitted before hearings began, Flentje adjusted the ban’s implications, carving out exemptions for certain visa holders.
“It has no application to all aliens who hold or seek non-immigrant visas such as student visas or work visas,” he said. This echoed an earlier pivot the White House and Department of Homeland Security tried to make as chaos ensured in the hours after the ban’s signing.
New York Times judicial correspondent Jesse Wegman said lawyers often use this tactic when they feel they have a weak case. It is a strategy of “if I can’t have 100 percent then give me 50 percent,” Wegman said on The New York Times’s “The Daily” podcast.
The counsel for the plaintiffs, Washington state Solicitor General Noah Purcell, convinced the judges that the travel ban needed to remain null on the grounds it irreparably injured residents of Washington state.
“We had students and faculty at our state university who were stranded overseas,” Purcell said.
While no CU students were caught on the wrong side of the border, 75 CU-sponsored visas were from the seven countries affected by the ban, the Daily Camera reported. In interviews conducted by the CUI, many of the students possessing these visas expressed concern for their ability to travel, visit family and transfer their F-1 student visas to the work visas that would allow them to remain in the country post-graduation.
Reflecting these concerns to the court, 97 companies, including tech giants Apple, Microsoft and Google, submitted a brief on the impact the ban will have on hiring.
Pushing back on Washington’s claim of religions discrimination in the ban, Judge Richard Clifton, another judge on the appeals court, questioned how many Muslims it affected.
“I am not entirely convinced by the argument, if only because the seven countries encompass a relatively small percentage of Muslims,” Clifton said.
Using Trump’s campaign rhetoric as evidence, Washington’s Purcell argued that the ban’s intent to harm on a religious basis was irrelevant to the number of Muslims it affected. “We do not need to prove that this order harms only Muslims or that it harms every Muslim. We just need to prove that it was motivated in part by a desire to harm Muslims,” Purcell said.
Even before the ban went into effect, the Trump administration asserted national security, not religion, as the primary reason for the ban. However, campaign aide Rudy Giuliani said to Fox News, “He called me up; he said, ‘Put a commission together, show me the right way to do [the Muslim ban] legally.’”
The appeals court ruled 3-0 in favor of Washington state, according to the Washington Post.
After the hearings, Trump fired back, citing the Immigration and Nationality Act of 1952, which gives the president authority to block any group of aliens from entry into the U.S. when in the interest of national security.
“A bad high school student would understand,” Trump said, implying the federal judges did not understand his reasoning for the ban.
The court’s ruling will likely be appealed to the Supreme Court, complicating the ruling as CU adjunct law professor Neil Gorsuch awaits confirmation to the long-vacant ninth seat of the court. A 4-4 draw would defer back to the lower court’s ruling, finalizing Thursday night’s decision.
Contact CU Independent Multimedia Manager Jackson Barnett at jackson.barnett@colorado.edu.
