Haste makes waste, in executive orders and appellate arguments.
Three Ninth Circuit judges seemed prepared to the eyeballs for Tuesday’s potentially historic arguments over President Donald Trump’s travel ban from seven Muslim-majority countries. But counsel for the Department of Justice and the State of Washington—albeit under the hardship of extreme time pressure—struggled to make their cases.
Four times the judges asked August Flentje, special counsel to the U.S. attorney general, if the president could ban Muslims explicitly without any review by the judiciary. Four times Flentje dodged the question. He also was stumped when asked for evidence that citizens from the seven countries pose a serious threat of terrorism. Instead he explained, twice, that the proceedings were moving too fast to marshal that evidence.
“You’re saying that these proceedings are moving fast, but you appealed to us” rather than build a trial record, Judge Michelle Friedland told him. “So why should we be hearing this now if it sounds like you’re trying to say you’re going to present other evidence later?”
Solicitor General Noah Purcell of Washington, meanwhile, wasted several minutes disringuishing between an appeal from a temporary restraining order and a petition for mandamus.
“This is Judge Clifton. Why should we care?” asked Judge Richard Clifton, who like all three judges and counsel were appearing by telephone.
Instead the judges peppered both sides about the merits of the TRO blocking Trump’s executive order, as some 137,000 people connected to the Ninth Circuit’s live stream of the arguments and many more watched on CNN and reacted on Twitter.
“Anyone listening to [the arguments] today comes away knowing the three panelists were not ‘so-called judges,’ and neither was Judge Robart,” Hogan Lovells partner Neal Katyal tweeted, referring to President Trump’s sobriquet for James Robart, the judge who entered the TRO.
Katyal, a regular presence at the Supreme Court who is representing Hawaii in similar litigation against the Trump administration, praised both sides’ arguments. “Both advocates deserve our thanks,” he wrote. “It’s a tough biz.”
It’s especially tough when briefing is conducted over the weekend and the case argued the next day with the nation listening. It was no doubt challenging for the Ninth Circuit panel too. By virtue of being assigned this month to motions duty, the three judges got pulled into the international debate on security, immigration and the separation of powers on similarly short notice.
Friedland is the most junior member of the 44-judge Ninth Circuit, a former Munger, Tolles & Olson partner appointed by President Barack Obama in 2014. She served as presiding judge of Monday’s panel because the two other members, Clifton and Judge William Canby, have taken senior status.
Flentje argued that Trump had ordered only a temporary pause on entry from the seven countries – Iran, Iraq, Libya, Sudan, Somalia, Syria and Yemen —due to the threat of terrorism from individuals there. “This is a traditional national security judgment that is assigned to the political branches and the president,” Flentje said.
Friedland immediately tried to pin down Flentje on the evidence of terrorism and whether Flentje was arguing that the court had no authority whatsoever to review Trump’s order.
Flentje didn’t answer so Friedland asked again: “Has the government pointed to evidence connecting those countries with terrorism?”
Flentje noted that “these proceedings have been moving very fast,” and that Congress and the Obama administration previously determined that those countries posed the greatest risk of terrorism.
Friedland tried one more time: “Are you arguing then that the president’s decision in that regard is unreviewable?”
After a five-second pause, Flentje said “yes,” but then added that there are “obviously constitutional limitations.”
“What are the constitutional limitations that the government acknowledges?” Friedland pressed.
Flentje said the government was not conceding any limitations.
Judge Canby, an appointee of President Jimmy Carter who took senior status in 1996, then chimed in. “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’” he asked.
“That’s not what the order does here,” Flentje responded.
“I know. I know,” Canby said. “Could he do that?”
“That’s not what the order does,” Flentje repeated, adding that he’d like to get to “one key point.”
“Well, we’d like to get an answer to that question,” replied Clifton, an appointee of President George W. Bush.
Flentje finally conceded that, under Supreme Court precedent, a U.S. citizen with a connection to someone living in a Muslim country would have standing to bring such a challenge, but not the states of Washington and Minnesota, the plaintiffs in the case.
When it was his turn to argue, Washington Solicitor General Noah Purcell said the judicial branch must serve as a check on abuses by the executive. “That judicial role has never been more important in recent memory than it is today,” he told the court.
But Purcell spent much of his argument bogged down in procedural issues with Clifton, who questioned whether Washington had presented enough evidence to show a likelihood of success on the merits.
“Do you deny that there is concern about people coming from those countries, separate and apart from what their religion might be?” Clifton asked.
Purcell said Washington has plausibly alleged that Trump intended to discriminate against Muslims, in violation of the Establishment Clause of the Constitution. “The case law is clear, at this stage our plausible allegations are taken as true for assessing that likelihood of success,” he contended.
“That cannot possibly be true,” Clifton replied. “We’re supposed to take your word for it?”
Friedland came to Purcell’s rescue, asking him if Washington has supported its allegations with exhibits.
“We’ve supported many of our allegations with exhibits, yes,” Purcell said, notwithstanding that “we’ve had extraordinary little opportunity to actually gather and present evidence.”
That led Clifton to accuse Purcell of making the same excuse the DOJ had. “Don’t tell us you need more time,” he said. “You’re the one that sought the temporary restraining order.”
But Canby pointed out that because the DOJ is appealing for a stay, it bears the burden of proving a likelihood of success.
When Flentje returned for rebuttal, even Clifton sounded adverse. He asked Flentje about Trump’s campaign promise to enact a Muslim ban and Rudolph Giulani’s statement that the executive order was a legal way of implementing it. “Do you deny those statements were made?” he asked.
Flentje said that even Robart had said he wasn’t going to consider campaign statements.
Clifton didn’t sound convinced. “We’re all on the fast track here. Both sides have told us it’s moving too fast,” he reminded Flentje. “Either those kinds of statements were made or they’re not.”
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