TRAVEL BAN HEARING: WHAT HAPPENS NEXT?

THE legal battle over Donald Trump’s travel ban for seven Muslim-majority countries entered a new stage on Tuesday, as the US ninth circuit court of appeals heard oral arguments over whether to keep in place a temporary restraining order issued by a federal judge last week.

In what may be the most gripping conference call in this nation’s history, attorneys for the State of Washington and the federal government were grilled by a panel of judges on topics including whether the State had the right to sue the US to what percentage of the world’s Muslims who were affected by the ban.

But despite the expansive questioning, the court is being asked to decide a very narrow question: whether district Judge James Robart was correct in granting a pre-trial injunction suspending the travel ban nationwide while Washington’s legal challenge is pending.  Here’s what you need to know about the hearing and what’s to come in the dispute over the controversial executive order:

Washington State Solicitor General Noah Purcell argued on behalf of the State of Washington, while August Flentje, special counsel to the assistant US attorney general, argued for the federal government.

The three ninth circuit court judges who will decide on the stay are William Canby Jr, who was appointed by Jimmy Carter; Richard Clifton, who was appointed by George W Bush; and Michelle Friedland, who was appointed by Barack Obama.  Washington has attracted significant support in its challenge to the Trump administration. Numerous technology companies, civil rights organisations, labor groups and law professors have filed amicus briefs in support of the restraining order.

The District of Columbia and 17 States – including New York, California and Virginia – also filed briefs supporting Washington State.
On the other side, a group of organisations including Citizens United, the English First Foundation, Gun Owners of America, the US Border Control Foundation and the US Justice Foundation filed an amicus brief supporting the federal government.

Judges grant temporary restraining orders if two conditions are met: there is a likelihood that the plaintiff will succeed on the merits of his arguments, and there is a likelihood of immediate, irreparable harm if the restraining order is not granted. The federal government wants the ninth circuit to grant a stay, overruling Robart’s decision. Washington State wants the ninth circuit to allow the restraining order to remain in place and the court case to proceed to the next step at the district level.

What are the arguments in favour of the stay?
The federal government is arguing that immigration and national security are under the authority of the president, and that Congress has authorized the president to suspend certain classes of immigrants, making the executive order, as Flentje put it, “plainly constitutional”.

As far as immediate and irreparable harm, the judges pushed Flentje hard to provide evidence that the EO is protecting the country from any actual risk, given that there were already screening processes in place for visa recipients from the seven countries. Flentje mentioned that some Somalis in the US have been connected to the terrorist group al-Shabaab.

The question of religious discrimination produced some of the most interesting discussion of the day, with Clifton wondering whether it made a difference that most of the world’s Muslims were unaffected by the ban, and Purcell retorting that ‘the president called for a complete ban on the entry of Muslims’.

Indeed, Trump’s campaign statements (and Rudy Giuliani’s recent television interview on the Muslim ban) became a key point of contention, with Purcell arguing that they were evidence of intent to discriminate. America is awaiting a ruling on whether a judge’s temporary suspension of Trump’s ban will stand. So how did we get to this point, and what comes next?

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