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.
The court said a ruling would come within days but that it would not be Wednesday.
Q: What was the upshot of the hearing?
A: 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. But Clifton said he wasn’t necessarily buying the states’ argument that the ban was motivated by religious discrimination.
Q: Muslim discrimination or not?
A: 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.
Washington state Solicitor General Noah 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.
Q: Will the case end up at the Supreme Court?
A: 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 in 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.