Lawyers for and against president's travel ban argue before appeals court

Updated:

President Donald Trump's travel ban will face its biggest legal test yet on Tuesday, when a panel of federal judges prepare to hear arguments from the administration and opponent including an attorney from Washington state. 

Federal Judge James Robart in Seattle temporarily halted the travel ban under Trump's executive order last week. Now, lawyers for and against the ban are arguing before the 9th Circuit Court of Appeals. 

Essex Porter will have a report with the biggest moments at 5 p.m. on-air or kiro.tv/LiveNews.

A timeline of events: 

Scroll down below this section for a full Q&A on Washington's lawsuit that is impacting people nationwide. 

  • The president signed an executive order barring people from seven Muslim-majority countries from entering the US for 90 days nearly two weeks ago.
  • The executive order prompted large protests in Seattle.
  • Last week, a lawsuit was filed in federal court in Seattle against President Donald Trump, the U.S. Department of Homeland Security and high-ranking Trump Administration officials.
  • State Attorney General Bob Ferguson announced the lawsuit, which asks a federal court to declare the travel ban order unconstitutional.
  • Ferguson also filed a motion for temporary restraining order seeking an immediate halt to the executive order’s implementation.
  • Trump has repeatedly said that the move is aimed at protecting the nation against extremists looking to attack Americans and American interests.
  • Judge James Robart ruled in favor of the attorney general's request on Friday for a temporary restraining order that halts implementation of the executive order nationwide.
  • The temporary restraining order will remain in place as Robart considers the Attorney General’s lawsuit challenging key provisions of the President’s order.
  • If Ferguson prevails, the executive order would be permanently invalidated nationwide.
  • The Justice Department on Saturday moved to appeal the decision on Saturday.
  • On Sunday, San Francisco-based 9th U.S. Circuit Court of Appeals, in a brief order, denied the administration's request to set aside Robart’s ruling.
  • On Monday, the Department of Justice filed a motion with 9th Circuit Court of Appeals -- requesting President Donald Trump's travel ban be temporarily resumed pending the White House’s appeal. 
  • Lawyers for and against the ban argued before the 9th Circuit Court of Appeals on Tuesday.

 

Can I get a quick refresher on the ruling?

U.S. District Court Judge James Robart of Seattle issued a ruling Friday on a request for a restraining order brought by the state of Washington that would suspend sections of the travel ban signed by Trump on Jan.  27.

The state of Washington contended that certain parts of the travel ban are contrary to the Constitution and the laws of the United States. The state asked for a nationwide ban on the order, which was granted. 

 

Robart’s decision did three things. First, it recognized that Washington and a second state that joined in on the request, Minnesota, had standing to ask for a restraining order. In other words, they were being harmed by the ban, so they could ask a court for help.

>> Trump's immigration ban: What to know

Second, the ruling required that the section of the travel ban that called for a 90-day halt to immigration from the seven countries, and the section that called for an indefinite suspension of immigration from Syria be lifted.

Third, the order put a halt to prioritizing refugee claims of certain religious minorities. Read a full story on the ruling here.

What was argued on Tuesday?

An argument was scheduled for 3 p.m. on Tuesday with 9th Circuit Court of Appeals.

Arguments over President Donald Trump's executive order on immigration concluded in the 9th U.S. Circuit Court of Appeals on Tuesday evening. 

The final minutes of the hearing were largely devoted to whether the travel ban was intended to discriminate against Muslims. Judge Richard Clifton wanted to know how the order could be considered discriminatory if it potentially affected only 15 percent of the world's Muslims, according to his calculations.

In response, Washington state Solicitor General Noah Purcell argued that it's remarkable to have this much evidence of discriminatory intent this early in the case. He mentioned Trump's campaign statements about a Muslim ban and public statements from adviser Rudy Giuliani that he was asked to help devise a legal version of the Muslim ban.

A Justice Department lawyer argued that the courts shouldn't question the president's authority over national security based on newspaper articles. But under questioning from Clifton he conceded that he doesn't dispute that the statements were made.

The government asked a federal appeals court to restore Trump's executive order, contending that the president alone has the power to decide who can enter or stay in the United States. But several states have challenged the ban on travelers from seven predominantly Muslim nations and insisted that it is unconstitutional.

Here's who was in court: 

  • David Madden, a spokesman for the 9th U.S. Circuit Court of Appeals, said the court's randomly assigned motions panel for this month will rule on the federal government's appeal of a Seattle judge's order temporarily blocking the travel ban.
  • The judges on the panel are Senior Judge William C. Canby Jr., appointed by President Jimmy Carter in 1980; Senior Judge Richard Clifton, appointed by President George W. Bush in 2002; and Michelle T. Friedland, appointed by President Barack Obama in 2014.
  • The two attorneys who will present arguments are Washington state's solicitor general Noah G. Purcell and a career trial attorney in the Department of Justice's civil division August E. Flentje.

 

Judges from the 9th U.S. Circuit Court of Appeals heard arguments over President Donald Trump's travel ban are expressing skepticism over the need for it. 
 
Circuit Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked whether the government has any evidence connecting the seven predominantly Muslim nations covered by the ban to terrorism. 
 

August Flentje said the government is aware of some foreign nationals who have been arrested in the U.S. since Sept. 11 but he didn't give details of the evidence. He also said president has broad power to enforce national security. 

What happened over the last few days?

On Monday, the Department of Justice filed a motion with the San Francisco-based 9th Circuit Court of Appeals -- requesting President Donald Trump's travel ban be temporarily resumed pending the White House’s appeal. 

In briefs filed early Monday morning with the 9th U.S. Circuit Court of Appeals, Washington state and Minnesota said Trump's travel ban harmed residents, businesses and universities and was unconstitutional.

The appellate court this weekend denied the Trump administration's request to immediately set aside Robart's ruling that put a hold on the ban nationwide but sought briefs from both Washington state and the federal government. 

Members of Trump's Republican Party scolded the president for Twitter attacks on U.S. District Court Judge James Robart, appointed by President George W. Bush, and lawmakers accused Trump of stepping over the line that separates the executive from the judiciary. To Trump, Robart is a "so-called judge" whose "ridiculous" ruling "will be overturned."

 

Homeland Security Secretary John Kelly made a comment on Tuesday thatacknowledged that the rollout of Trump's executive order had been mishandled.

"In retrospect, I should have — this is all on me, by the way — I should have delayed it just a bit so that I could talk to members of Congress, particularly to the leadership of committees like this, to prepare them for what was coming," Kelly said.
 

What happens next? 

A ruling is not expected to come down on Tuesday but probably this week.
 

What are possible outcomes?

If the court upholds the restraining order, then that means the travel ban stays on hold – unless or until the administration appeals the decision.

If the judges rule in favor of the administration, the restraining order on the travel ban is lifted and it goes back in force. 

What does this mean for travelers?

Trump's order a caused confusion for many foreigners trying to reach the United States, prompted nationwide airport protests and led to multiple court challenges.

A temporary restraining order against the executive order will remain in place as Robart considers a Washington state lawsuit against Trump's ban, according to Attorney General Bob Ferguson 

Attorney General Bob Ferguson said this means families waiting overseas can now fly to the United States. 

“If someone who may be waiting to board a plane overseas, wanting to come to the United States, has a ticket, does this apply to them now? The short answer is yes,” said Washington Attorney General Bob Ferguson.

On Monday, Gov. Jay Inslee and Ferguson who greeted a Somalia native who was scheduled to arrive in Seattle two Saturdays ago. Instead was sent back to Vienna.

Can I get a refresher on Washington’s lawsuit?

Ferguson announced his lawsuit last week, becoming the first state attorney general to announce a legal action against the Trump administration over one of its policies. Minnesota joined the suit two days later.

Ferguson’s complaint asks the United States District Court for the Western District of Washington to declare key provisions of the executive order unconstitutional and illegal.

Ferguson also filed a motion for temporary restraining order seeking an immediate halt to the executive order’s implementation. Read a full explainer on the lawsuit here. 

The attorney general argues that the executive order violates the U.S. Constitution’s guarantee of Equal Protection and the First Amendment’s Establishment Clause, infringes individuals’ constitutional right to Due Process and contravenes the federal Immigration and Nationality Act.

Major Washington state institutions supported the lawsuit through declarations filed alongside the complaint. Microsoft and Expedia are willing to testify in this case and Amazon is seeking its legal options. 

Related: Local tech giants willing to testify in AG's case against Trump's immigration ban

Oregon is supporting Washington state's lawsuit against President Donald Trump's executive order by signing a friend of the court brief in the U.S. 9th Circuit Court of Appeals along with more than a dozen other states.

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