Friday, January 24, 2020
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9th Circuit hears about Trump’s travel ban

Lawyers for President Donald Trump’s Justice Department and those representing attorneys general from Washington and Minnesota presented their arguments yesterday in the case of an executive order that imposed certain travel restrictions. The case is now before the US Court of Appeals for the Ninth Circuit in San Francisco, the Wall Street Journal reports.


Students protest at Walla Walla (Wash.) Airport (Tywen Kelly / student newspaper)

August Flentje, the Justice Department lawyer arguing on behalf of the administration, defended the executive order signed last week by Mr Trump that temporarily restricted entry into the US for anyone from seven predominantly Muslim countries. He said the administration struck a balance between security concerns and the practice of allowing people to enter the country.

“The president struck that balance, and the district court’s order has upset that balance,” he told a three-judge panel. “This is a traditional national security judgment that is assigned to the political branches and the president and the court’s order immediately altered that.”

He was referring to a federal judge in Seattle who blocked the executive order and travel ban almost immediately after it was signed.

One judge just came out and asked Mr Flentje, “Could the president simply say in the order we’re not going to let any Muslims in?”

That remark led many observers to believe the Ninth Circuit panel, two of whom were appointed by Democratic presidents, is skeptical of the travel ban’s legality. This feeling was further highlighted by the court asking for any evidence that the ban will help national security, as the administration claimed.

Mr Flentje has to concede, as was clear in the district court, that there’s no direct evidence anyone from the seven countries banned ever committed a terrorist act on US soil. The lack of evidence was an essential component of the argument against the ban.

In a moment of back-and-forth, one judge asked Mr Flentje, “Are you arguing, then, that the president’s decision in that regard is unreviewable?” She was referring to the notion of judicial review, which is granted through Supreme Court cases that came long ago in our history.

Mr Flentje paused. Then he said yes, the New York Times reports. That is simply stunning. It’s like he doesn’t know what judicial review is.

But he added, “There are obviously constitutional limitations, but we’re discussing the risk assessment,” just to clarify and to remind the panel he was aware of judicial review, as established in Marbury v Madison (1803).

So we haven’t completely lost our Constitution, but we may need to make some exceptions, the Justice Department seemed to say.

The travel ban led to people being detained at airports across the country, kids being separated from their parents, travelers being denied food for more than a day while they were in handcuffs, fears among university officials that students and professors won’t be able to enter the country, and other odd travel disruptions. Protests broke out at airports across the country, with people refusing to accept the president’s travel ban.

Students at Whitman College in Walla Walla, Washington, live near an airport that’s just a little too small to spontaneously erupt in protest, but students at the college decided to organize a protest anyway, with the help of Facebook and the Walla Walla Progressives, a left-leaning community-based organization, the Whitman Wire reports.

“This isn’t a protest against an airport or against what the airport is doing; it’s a solidarity rally,” the student newspaper quoted senior Dessie Weigel as saying about the protest she helped to organize. “We are standing here at our airport to show that we are standing with the people who are currently being detained in airports in the US as well as people who are being denied access to flights to the US in other countries.”

The rally started at about 6 PM on January 30, only three days after the executive order was signed, and brought out about 100 people, according to news editor Chris Hankin’s report.

“Hopefully people making decisions and people with the power to change these policies will still hear and see the number of people who disagree, and that we are a passionate community—one that they represent,” Ms Weigel added.

Whatever the three-judge panel decides, the case, State of Washington v Trump, is likely to be appealed to the Supreme Court. The court is said to be weighing Mr Trump’s motives of banning Muslims, as stated during his campaign, and the strict language of the executive order, which does not provide a religious test for immigrants.

UPDATE 2/10/17: Read the order of the 9th Circuit, entered on February 9.
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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