In an unusual set of oral arguments by conference call late Tuesday, a three-judge panel of the Ninth Circuit Court of Appeals heard and questioned attorneys for the federal government and for the states of Washington and Minnesota over the government’s plea to set aside a district judge’s temporary restraining order against the Trump administration’s travel ban.
The government had the burden of convincing the judges that letting the TRO remain in place while the district court heard the case would represent “irreparable harm” to the national interest and would also interfere with the president’s exercise of congressionally delegated authority over immigration law. The Justice Department’s August Fientje heavily emphasized that authority in his argument, and the more specific congressional warrant for looking closely at the seven countries of origin that are the focus of the travel ban.
Fientje’s argument that the states involved did not have proper standing to bring the suit — particularly with respect to refugees and visa applicants who had never been in the U.S. (the major groups affected by the ban after it was relaxed to not include those with permanent residence status) — drew much skeptical questioning from the judges, to the exclusion of the merits of the case. Washington State Solicitor General Noah Purcell ran into trouble with at least one of the judges — Richard Clifton, a George W. Bush appointee to the Ninth Circuit — for assertions that a ban affecting a relatively small percentage of Muslims overseas was necessarily religiously motivated.
But that same judge upbraided Fientje for suggesting that evidence of an intent to impose a travel ban on Muslims by the president and at least one adviser was just “newspaper articles.”
Both lawyers sought to encourage the judges on the Ninth Circuit panel — Michelle Friedland, an Obama appointee, William Canby, a Jimmy Carter appointee, and Clifton — to tailor a ruling in a way that gave its side the advantage in what happens next. Purcell sought a ruling that would let district court judge James Robart proceed with a hearing on the travel ban without the government interfering via an immediate appeal to the Supreme Court, which the government will most definitely try to pursue if the court of appeals denies its petition for a stay of the temporary restraining order, or TRO. Fientje repeatedly argued that, even if the judges thought the states had standing to bring suit on behalf of actual residents, they should knock out the TRO for people who had not been in the U.S.
The New York Times’ Charlie Savage probably spoke for most listeners in making a perilous tentative prediction based on the oral arguments:
[I]f someone put a gun to my head and forced me to predict, at this point I’d guess that this will be a 2-1 ruling rejecting the Trump administration’s request that the 9th Circuit lift the temporary restraining order.
But all that would mean is that the case would, for an instant at least, proceed at the district-court level, even as Trump’s lawyers sought to drag SCOTUS in to stop it and (at least temporarily) restore the travel ban.
It’s unclear when the Ninth Circuit panel will make its ruling — though some time this week is a good guess. It would be wise to take any cheers and jeers for whatever it does with a grain of salt. This case probably has a long way to go in the courts, and both sides will obviously keep trying to score points in the court of public opinion as well.