Untangling legal issues surrounding the travel ban

Published 10:07 am Thursday, February 9, 2017

SEATTLE — A federal appeals court is considering whether to reinstate President Donald Trump’s travel ban, but another aspect of his executive order is still in effect — a review of visa procedures to ensure they are strict enough.

That review can happen whatever the 9th U.S. Circuit Court of Appeals decides. Knowing that could give the panel of three judges more reason to leave the ban on refugees and people from seven Muslim-majority countries with ties to terrorism on hold while the legal challenge by Washington state and Minnesota plays out.

“Is there any reason to think there’s a real risk … if existing procedures weren’t allowed to stay in place while the administration, the new administration, conducts its review?” Judge Richard Clifton asked during a hearing Tuesday.

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The court said a ruling would come within days but that it would not be Wednesday.

What was the upshot of the hearing?

Trying to divine how a court might rule from the questioning can be a fool’s errand, but some legal scholars who were willing to try said Washington state appeared to make enough of a case to keep the ban on ice, at least for now.

The judges repeatedly asked Justice Department attorney August Flentje whether the government had any evidence that the travel ban was necessary or that keeping it on hold would harm national security. They expressed skepticism over his argument that the states don’t have standing to sue and over his assertion that the courts have little to no role in reviewing the president’s determinations concerning national security.

Stephen Vladeck, professor at the University of Texas School of Law, wrote in an email that he was struck by “the government’s seeming inability to provide concrete evidence of why immigration from those countries threatens national security.”

Washington state Solicitor General Noah Purcell also faced tough questioning from Clifton, who said he wasn’t necessarily buying the states’ argument that the ban was motivated by religious discrimination. The judge mentioned that the vast majority of Muslims live in countries that aren’t targeted by the ban.

Muslim discrimination or not?

After being repeatedly asked, Flentje acknowledged that individuals could have standing to sue if the president tried to enforce a ban on Muslims entering the U.S. But, he said, that’s not all what’s happening here.

Basing the order on travel from certain countries that have been linked to terrorism — whatever their religion — is a legitimate exercise of the president’s authority over national security, he argued.

Purcell said it’s remarkable to have this much evidence of discriminatory intent this early in the case — including Trump’s campaign statements about a Muslim ban and adviser Rudy Giuliani’s comments that he was asked to help devise a legal version of the Muslim ban.

“There are statements that we’ve quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims,” Purcell said.

Even if Trump’s executive order itself doesn’t single out Muslims, the order is unconstitutionally discriminatory if it was adopted with such intent, Purcell said.

What are the court’s options?

Purcell argued that the simplest course is to send the case back to U.S. District Judge James Robart for procedural reasons.

The Seattle judge temporarily blocked the executive order last week while the states’ lawsuit works its way through the courts. The Washington state solicitor general said the appeals court could take up the merits of the case after Robart issues a further ruling.

The Justice Department said the court could narrow the scope of Robart’s order, which it called too broad.

Flentje suggested it could be limited to allow the president to ban travelers who don’t already have relationships with the United States, while allowing legal permanent residents, for example, to return to the U.S. from the seven countries.

Purcell said that wouldn’t work. The government hasn’t shown that it could engineer a way to apply the ban so selectively, he said.

Judge William Canby noted that Washington’s universities might want to invite foreign scholars to visit and that they might have no connection to the U.S.

Will the case end up at the Supreme Court?

There’s a good chance, but how and when is unclear.

The Supreme Court has a vacancy, and there’s no chance Trump’s nominee, Neil Gorsuch, will be confirmed in time to take part any consideration of the ban. Under the most optimistic timetable, Gorsuch would not be confirmed before early April.

Senate Democrats are likely to question Gorsuch about his views on presidential power, both in light of the Trump order and Gorsuch’s writings expressing skepticism about some aspects of executive authority.

The travel ban was set to expire in 90 days, meaning it could run its course before the court takes up the issue. Furthermore, the administration could change the executive order, including changing its scope or duration.