SEATTLE - The Ninth Circuit Court of Appeals could decide this week on Washington state’s case against President Donald Trump and his administration’s extreme vetting executive order.
The three-judge panel will rule on whether or not to keep in place the temporary restraining order granted last Friday by Seattle-based U.S. District Judge James Robart.
On Tuesday, the appeals judges grilled attorneys by phone during hour-long oral arguments, focusing in large part on the Washington suit’s claim of religious discrimination.
“I’m not entirely persuaded by the argument if only because the seven countries encompass only a relatively small percentage of Muslims,” said Judge Clifton, a President George W. Bush appointee. “Do you have any calculations…my quick penciling is less than 15%.”
“We just need to prove that it was motivated in part to harm Muslims,” responded Washington Solicitor General Noah Purcell.
“There are statements that we’ve quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims given that we haven’t even had discovery yet,” continued Purcell referencing statements made by President Trump on the campaign trail, as well as public statements made by his advisors.
The Department of Justice argued that the seven predominately Muslim countries affected by the immigration order were designated as areas of concern by Congress and the past administration.
“It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles,” countered August Flentje, Special Counsel to the Assistant U.S. Attorney General. “That is very troubling second guessing of national security decision made by the President.”
Judge Clifton, interrupting, asked whether Flentje denied the statements attributed to then candidate Trump and his advisor Rudi Giuliani.
“No,” said Flentje who continued “I would note that Judge Robart himself, said that he wasn’t going to look at campaign statements.”
The federal government’s central argument revolves around the broad authority of the President, granted by Congress, to restrict immigration or refugees based on national interest.
“This judgment was well within President’s power as designated by Congress,” argued Flentje at the beginning of arguments.
“Have you offered any evidence?” asked Judge Michelle Friedland, an appointee of President Obama. “Are you saying we can’t ask for evidence because order is not reviewable.”
Flentje cited “a number of people from Somalia who have been convicted,” but did not give specific examples.
Judge William Canby, appointed by President Carter, later interjected to ask: "Could the President simply say in the order ‘we’re not going to let any Muslims in?"
“That’s not what the order does here," replied Flentje.
"I know that, but could he do that?" Judge Canby pressed. "We'd like to get an answer to that question," added Judge Clifton.
Full arguments are listed on the court's public website.
Following the hearing, Judge Friedland indicated the panel would rule as quickly as possible. Depending on its decision, the case could end up heading to the U.S. Supreme Court, still missing a justice.
"We're going to take it through the system. It's very important for the country regardless of me or whoever succeeds at a later date," President Trump told NBC Tuesday morning.
When asked whether Trump believes the legal battle could end up going to the nation's high court, the President replied, "We'll see. Hopefully, it doesn't have to."
"It's common sense," Trump continued. "You know some things are law, and I'm all in favor of that, and some things are common sense."
Since Friday's ruling, a number of immigrants and refugees affected by Trump's extreme vetting executive order have resumed travel.
"This morning was the first chance I actually got to watch on TV scenes like this at airports all around the country. We’ve just been so damn busy at the office," said Washington Attorney General Bob Ferguson meeting with a reunited family at Sea-Tac airport on Monday.
The Trump administration's order in question suspended the U.S. refugee program for 120 days, indefinitely suspended Syrian refugees, and put a 90-day pause on immigration from seven predominately Muslim counties.
"We need to make decisions based on facts, not alternative facts, and the fact is the people from the countries that Mr. Rabi came from have not been responsible for one since terrorist attack since 9/11," said Governor Jay Inslee, referencing one of the Washington residents affected by the order last week.
Attorneys for the Trump administration argue that Robart's "sweeping nationwide injunction is vastly over broad."
The Department of Justice's central argument revolves around the broad discretion granted to the President by Congress, in matters of immigration and the refugee program.
In a meeting on Capitol Hill Tuesday, Department of Homeland Security Secretary John Kelly told the House Homeland Security Committee that he should have talked to members of Congress ahead of rolling out the executive order.
"I should have delayed it just a bit," said Kelly.
However, Sec. Kelly defended the order, calling current "vetting, at best loose."
"I believe the vetting on the other end right now is not adequate to protect the nation."
A group of ten former national security and foreign policy officials disagree, calling the order "unnecessary," as well as "ill-conceived, poorly implemented and ill explained."
"We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer," read a declaration filed as part of Washington state's response to the DOJ appeal.
The mostly Democratic former officials, including former Secretaries of State Madeleine Albright and John Kerry, along with former Director of National Security Agency Michael Hayden, and former CIA Director Leon Panetta signed on in support of the state’s suit.
“The Order is unprecedented in scope. We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people,” their document noted.
While most of the signatories served under Democratic administrations, the group includes officials who advised both the Barack Obama and George W. Bush administrations.
“A number of (us) have worked at senior levels in administrations of both political parties,” the declaration said. “Four of us were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the Jan. 27. 2017 Executive Order.”
Read: Full declaration
The full list of signatories includes Madeleine Albright, Avril Haines, Michael Hayden, John Kerry, John McLaughlin, Lisa Monaco, Michael Morell, Janet Napolitano, Leon Panetta, and Susan Rice.
Their declaration also keys into a question raised by U.S. District Senior Judge James Robart on Friday, who inquired about the rationale of targeting the seven countries affected by the executive order.
Related: Meet Judge James Robart
“Have there been terrorist attacks in the United States by refugees or immigrants from the seven countries listed since 9/11?” Judge Robart asked the DOJ attorney arguing on behalf of the Trump administration.
“You’re here arguing on behalf of someone who says we have to protect U.S. from these individuals coming from these countries, and there’s no support for that,” Robart continued.
Watch: Full hearing
The DOJ, meanwhile, points to the seven countries being designated as areas of concern by Congress and the previous administration.
“Because it’s a question of foreign affairs; Congress has delegated authority to the President to make these determinations,” argued DOJ attorney Michelle Bennett. “The court does not have the authority to look behind the determinations.”
President Trump, weighing in on Twitter wrote, “What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.”
“Just cannot believe a judge would put our country in such peril. If something happens blame him and the court system,” another tweet read in part.
President Trump, who also called Judge Robart "a so-called Judge," predicted the ruling would be overturned.
AG Ferguson predicts the case could end up before the U.S. Supreme Court. However, if the nation's high court, which is still missing its ninth justice, were to tie 4-4, the 9th Circuit Court of Appeals decision would stand.
The 9th Circuit Judges scheduled to hear the case are WIlliam Canby Jr., appointed by President Carter, Richard Clifton, appointed by President George W. Bush, and Michelle Friedland, appointed by President Obama.
Legal analysts describe Clifton as moderately conservative and Canby and Friedland as moderately liberal, according to the LA Times. In general, the 9th Circuit is viewed as the most liberal federal appeals court.