Richard Clifton, Michelle Friedland, and William Canby.
Richard Clifton, Michelle Friedland, and William Canby. (Photos: ALM)

SAN FRANCISCO — It was Judge Michelle Friedland, the most junior judge on the panel, who opened the hearing and had the first pointed question for the lawyer representing the Trump administration.

Friedland wanted to know what evidence the government had to support its finding that the travelers from seven predominantly Muslim nations should not be admitted to the United States.

“Are you really arguing that we can’t even ask about whether there’s evidence because this decision is not reviewable?” asked Friedland, who was nominated to the bench in 2013 by Barack Obama.

In that early exchange DOJ lawyer August Flentje argued that the president’s determination that individuals from those countries pose an intolerable national security risk should not be second-guessed by the court.

“Our point would be there is limited review and the executive order easily passes that test,” Flentje said.

The U.S. Court of Appeals for the Ninth Circuit was center stage Tuesday afternoon in the fast-moving, cross-country legal fight over President Donald Trump’s executive order suspending immigration from seven predominantly Muslim countries.

A three-judge Ninth Circuit panel heard the federal government’s appeal of a temporary restraining order issued Friday by U.S. District Judge James Robart in Seattle.

Friedland, William Canby Jr., a Carter appointee, and Richard Clifton, a George W. Bush appointee sit in California, Arizona and Hawaii respectively, so arguments were held by telephone. An recording of the proceedings is available via the Ninth Circuit’s website.

From the outset Tuesday, Flentje fielded hostile questions from all three judges.

“Could the president simply say in the order we’re not going to let any Muslims in?” Canby asked.

“That’s not what the order does here,” Flentje responded.

“I know,” Canby said. “Could it do that? Would anybody be able to challenge that?”

“That’s not what the order does here,” Flentje repeated, prompting Clifton to interject and push the government’s lawyer to give a direct answer.

Flentje argued that Robart’s ruling in a case filed by the states of Washington and Minnesota is a judicial overstep into issues of immigration policy and national security specifically reserved for the political branches of government.

Even if the panel were to uphold Robart’s injunction order, it should not apply nationwide, Flentje urged. He pointed out that a federal judge in Massachusetts overseeing a similar constitutional challenge to Trump’s executive order had found that it was a legitimate use of executive power over immigration and national security policy.

Arguing for the states, Washington state solicitor general Noah Purcell said that Robart’s temporary restraining order wasn’t ripe for review. The Ninth Circuit should hold off on weighing in on Robart’s decision until he rules on the states’ request for a preliminary injunction, Purcell said.

“At this point it’s really the federal government that’s asking to upset the status quo,” he said.

Friedland and Clifton both questioned the nationwide scope of Robart’s TRO.

“Why isn’t it overbroad?” Clifton asked.

The judge also prodded Purcell on his assertion that Trump’s executive order is directed at Muslims, pointing out that 85 percent of the world’s Muslims are not affected and the threat of terrorism is “kind of hard to deny.”

Purcell seemed caught off guard by the force of the questioning. 

“We do not need to prove that this order harms only Muslims or that it harms every Muslim,” he said.

Purcell also said public statements by the president and his top advisors show “rather shocking intent” to discriminate against Muslims. “It’s remarkable to have this much evidence of intent without discovery,” he said.

Court adjourned at 4:10 p.m.

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