I listened yesterday to the oral arguments before a panel of the Ninth Circuit Courts of Appeal on whether the stay on Trump’s Executive Orders on people entering the US that was imposed by the US District Judge in the state of Washington should be lifted. (You can listen to the oral arguments here.) It is always hard to predict outcomes based on the kinds of questions that the judges ask. The questions posed to August E. Flentje, the attorney speaking on behalf of Trump’s orders, were more sharp and skeptical and the attorney seemed less prepared. At the end he even conceded that he did not seem to be persuading the justices. He admitted that the rollout of the orders had been confusing, with legal permanent residents first being included in the ban and then excluded and suggested that an acceptable outcome might be for the judges to rule that the ban only applies to people who have never been in the US before. One justice pointed out that it should not be their job to clarify what the administration’s intentions are about who is covered and that the administration could issue new orders that were clearer.
The main point that seemed to go against Noah Purcell, who was arguing that the the district judge’s stay of the orders should be upheld, was why the ban should be construed as a ban targeting Muslims when it did not explicitly single out religion in the orders and the people from the seven countries represented only about 15% of all Muslims. He said that one had to look at intent and that Trump’s comments during the campaign and Rudy Giuliani’s boast that he had been asked to phrase the ban to hide its anti-Muslim nature were evidence of that intent. He also had to defend the fact that countries had been singled out for selective denials of entry in the past and why this time it was different.
Flentje also argued that the president’s decisions on matters pertaining to national security should be unreviewable by the courts. Part of the problem is that there has been a steady increase of executive power over time and when Obama claimed all manner of executive privileges in the name of national security, many liberals and Democrats did not object strenuously. This illustrates how important it is to defend rights against any and all encroachments by anyone at all.
The justices said that they would rule as soon as possible, very likely later this week.