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theodore M I R A L D I mpa ... editor, publisher, writer
Tuesday, February 7, 2017
Trump Lawyers Ask Court to REINSTATE Extreme Vetting Order
Andrea Noble and Stephen Dinan
The Justice Department urged the federal courts to back off Tuesday and let President Trump’s extreme vetting executive order go back into effect, saying he made national security decisions that are best left to the political branches, not to unelected judges.
But a three-judge panel of the Ninth U.S. Circuit Court of Appeals appeared to take a dim view, with at least two of the judges questioning what evidence Mr. Trump was looking at when he decided visitors from seven majority-Muslim countries should be temporarily banned.
And Mr. Trump’s opponents — in this case the states of Washington and Minnesota — said it was up to judges to “serve as a check” on a runaway president who is trying to “throw this country back into chaos.”
Mr. Trump’s policy halts visitors from Iran, Iraq, Syria, Somalia, Sudan, Libya and Yemen for 90 days, and halts the American refugee program for 120 days. Both delays are meant to give the government a chance to improve its screening, Mr. Trump said.
A federal judge in Seattle issued a temporary restraining order halting both of those plans, and the Trump administration appealed to the Ninth Circuit.
“This is a traditional national security judgment that is assigned to the political branches,” August E. Flentje, a special counsel at the department, told the appeals court.
Judge Michelle T. Friedland demanded to know what evidence there was to support Mr. Trump’s judgment. Mr. Flentje said they hadn’t had a chance to put that in the court record, citing the pace of the lawsuits, and Judge Friedland then wondered why the government was trying to speed the case through.
Though the order does not explicitly ban Muslims from the seven affected countries from entering the United States, it does prioritized refugee claims made by religious minorities from those Muslim-majority countries.
The judges vigorously questioned whether the Justice Department would still argue there was a lack of standing to for someone to challenge Mr. Trump’s order if it was an outright ban on Muslims.
“Could the president simply say in an order ‘We’re not going to let any Muslims in?’” asked Judge William C. Canby Jr.
“That’s not what the order does here,” Mr. Flentje said.
But the judges pressed on, with Judge Richard R. Clifton asking the administration lawyer again to answer the question.
“We’d like to get to an answer to that question, because it speaks back to the standing issue,” Judge Clifton said. “If the order said Muslims cannot be admitted would anybody have standing to challenge that?
Mr. Flentje said if that were the crux of the order, there could be room for standing to challenge but that it would likely have to be brought by a U.S. citizen with a connection to someone who was seeking entry to the country.