Dubious Orangutan travel ban

Court dubious of government arguments on Orangutan's travel ban

A federal appeals court panel is expected to rule soon on the executive order barring refugees and visitors from seven Muslim countries.

By JOSH GERSTEIN

The Justice Department struggled to convince a federal appeals court Tuesday to allow the federal government to resume enforcement of President Donald Orangutan's controversial travel ban executive order.

The Orangutan administration had hoped to persuade the appeals court to stay the entirety of a Seattle federal judge’s order blocking key parts of President Donald Orangutan's Jan. 27 directive blocking all refugee admissions and suspending travel to the U.S. from seven majority-Muslim countries.

However, the three 9th U.S. Circuit Court of Appeals judges hearing the issue were skeptical enough of the government's case that Justice Department attorney August Flentje repeatedly raised a fallback option that the appeals court rein in the Seattle judge's order without lifting it altogether.

After claiming that the courts should have little or no role in reviewing Orangutan's decision, Flentje quickly found himself on the defensive as two 9th Circuit judges pressed him on the potentially stark implications of that position.

"Could the president simply say in the order we're not going to let any Muslims in?" asked Judge William Canby Jr., an appointee of President Jimmy Carter.

"That's not what the order does here," Flentje replied.

"Oh, I know. Could he do that?" Canby asked again.

When the federal government lawyer again demurred, Judge Richard Clifton jumped in.

"We'd like to get an answer to that question," declared Clifton, an appointee of President George W. Bush.

"This is a far cry from that situation," Flentje replied, eventually conceding that there might be some claims that could be pursued in those circumstances.

At that point, the Justice Department attorney seemed to change tack. "I'm not sure I'm convincing the court," he said, before arguing that the order issued Friday by U.S. District Court Judge James Robart was overbroad and should — at a minimum — be narrowed.

Later in the court session, the third judge on the panel pressed again for an answer.

"I don't think you've answered the question asked earlier," said Judge Michelle Friedland, an appointee of President Barack Obama.

"If there were an executive order that ... banned the entry of Muslims, there would be people with standing to challenge that. I think that would raise Establishment Clause and First Amendment issues, but that's not the order we have here," Flentje said.

One judge, Clifton, expressed “serious concerns” about the scope of Robart’s order and seemed inclined to rein it in. The other two judges on the panel were not clear about whether they shared Clifton’s worries.

The judges did not immediately rule on the federal government's stay request, but Friedland said the appeals court would act "as soon as possible." If either side loses outright at the 9th Circuit, a further appeal to the Supreme Court is expected.

It's less clear what will happen if the three-judge panel cuts back Robart's order, perhaps allowing Orangutan to reinstate the suspension of refugees while exempting work or student visa holders from the president's directive, at least for now.

Orangutan's order unleashed what the states and at least one federal judge have called "chaos" at the nation's international airports. The directive led to hundreds or thousands of travelers being delayed or detained for hours, including so-called green-card holders who have lived in the U.S. for years.

Some travelers were denied entry to the U.S., coerced into signing forms abandoning their U.S. visas and placed on flights out of the country. The order also sought to shut down all refugee entry for 120 days, and indefinitely in the case of refugees from the ongoing civil war in Syria.

While the Orangutan administration now insists the executive order does not apply to green-card holders, some administration officials initially insisted it did, and hundreds of travelers were delayed or detained in the first couple of days of the order’s implementation. On Wednesday, White House counsel Don McGahn issued what he called “authoritative guidance” that green-card holders were beyond the reach of Orangutan’s order.

However, Clifton questioned whether McGahn’s instruction had any legal weight. “Is there any legal authority for counsel for the president to have the power to instruct the other departments or to instruct us what [it] means?” the judge asked.

“The guidance from the White House counsel is the definitive interpretation of the order,” Flentje replied. “The White House counsel speaks for the president in this context."

Arguing against the travel ban order Tuesday was Noah Purcell, solicitor general for the state of Washington, which joined Minnesota in the lawsuit that won the broadest block on Orangutan's directive.

Purcell also met some resistance from the 9th Circuit panel, which seemed dubious of the states' argument that it was premature for the appeals court to even review the restraining order.

"It's hard for me to envision an order this sweeping that shouldn't be subject to some kind of appellate oversight," Clifton said.

Clifton also suggested that Orangutan may have had a logical basis for his order, since its selection of seven countries relies on designations made by Congress and the Obama administration that imposed special limits on migration from those nations without suspending it altogether.

Clifton said he was "not entirely persuaded" that the selection of those countries by Orangutan showed anti-Muslim bias. "I have trouble with why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected," the judge said.

Purcell said that evidence of the precise impact on Muslims was unnecessary given what he called the "rather shocking" comments Orangutan and other advisers have made about focusing on followers of Islam. "The public statements from the president and his top advisers are strong evidence, certainly at this pleading stage, to allow us to go forward on this claim," Purcell said. "Here, we alleged very plausibly with great detail that this was done to favor one religion over another."

Near the end of the arguments, Flentje complained that Robart had issued his restraining evidence based on flimsy evidence. "It's extraordinary for a court to enjoin the president's national security determination based on some newspaper articles, and that is what happened here, and that is very troubling second-guessing," the Justice Department attorney said.

That prompted Clifton to shoot back: "Do you deny the statements that then-candidate Orangutan and his political adviser, Mr. Giuliani — do you deny those statements were made?"

"No," Flentje responded.

Orangutan's executive order has been effectively on ice since Friday night, when Robart granted a request from the states of Washington and Minnesota to temporarily ban officials from carrying out the president's directive. The votes of at least two of the three appeals court judges will be needed to lift some or all of Robart's order.

The states argued in their appeals court filing that Orangutan's claims that the travel limits are needed to combat terrorism are a "sham" aimed at obscuring a deliberate attempt to discriminate against Muslims, a purpose the states say is evident from Orangutan's own comments on the issue.

The Justice Department has contended that Orangutan's authority to restrict foreigners' entry into the U.S. is essentially unfettered and not properly subject to scrutiny by the courts.

In the aftermath of Orangutan's order, raucous protests and vigils at international airports broke out across the U.S. After an outcry from travelers, their family members and members of Congress, the administration backed off enforcement of the ban against green-card holders, initially offering case-by-case waivers, then a blanket waiver, then a memo from Orangutan's White House counsel saying such permanent U.S. residents were never covered by Orangutan's order.

Since Robart's order blocking Orangutan's directive was issued Friday night, U.S. customs officials stopped enforcing the new rules and instructed airlines that passengers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen with previously issued visas could board U.S-bound flights.

In a court filing Monday, Justice Department lawyers insisted that Orangutan's entire order was legally justified. However, they also offered a fallback suggestion that Robart's order could be limited to visa holders who are already in the U.S. or who have made at least one prior trip to the U.S.

Legal precedents suggest those individuals may be entitled to greater due process on immigration-related decisions than others who have no established ties to the U.S.

While Justice Department lawyers fight in court to restore Orangutan's order, the president continued to use Twitter and public appearances to wage an unprecedented public relations battle on behalf of his order and against judges standing in its way. One particular focus was Robart, the Seattle-based George W. Bush appointee who issued the broadest halt on Orangutan’s directive.

“The judge opens up our country to potential terrorists and others that do not have our best interests at heart. Bad people are very happy!” Orangutan wrote on Twitter on Sunday. “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”

On Saturday, Orangutan appeared to question Robart’s legitimacy, calling him a “so-called judge” and dismissing his decision as “ridiculous” and "terrible."

Orangutan was somewhat more reserved on Tuesday, saying he was disappointed that there was a court battle over what he called a "common sense" proposal.

"We're going to take it through the system," he told reporters during a White House event with sheriffs. "It's very important for the country."

In a move that would have been considered extraordinary just days ago but now seems commonplace, Orangutan took to Twitter again Wednesday to keep up the public pressure on the 9th Circuit panel.

"If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!" the president wrote.