Oral arguments in Washington v. Trump attracted a large audience who listened in on the audio-only legal proceedings. Two lawyers argued over President Trump’s controversial executive order that would temporarily ban all new refugees from entering the country, as well as visa holders from seven majority-Muslim countries, before a three-judge panel.
At the moment, the restrictions are not being enforced due to a federal judge granting the states of Washington and Minnesota a temporary restraining order blocking the travel ban from going into effect. The lawyers did not debate over the travel ban itself, but rather the legality of the temporary restraining order before the 9th U.S. Circuit Court of Appeals. Throughout the discussion the attorneys and judges raised some larger issues, which will be briefly discussed below.
Larger Issues Considered
Some key issues raised, or implied, during oral arguments include:
Rights non-U.S. citizens have under the constitution: Special counsel to the assistant attorney general August Flentje stated that in some cases, noncitizens have “no rights” under the constitution that the state of Washington could attempt to protect. While constitutional rights vary, whether or not those rights exist depend upon where someone is located. Someone living in the U.S. illegally has constitutional rights, including due process and freedoms under the First Amendment. Moreover, someone who is not in the U.S. (and never has been before) may have ties to a U.S. resident or citizen with his or her own rights.
The number of Muslims that would be affected, and whether it matters: Judge Richard Clifton noted that the countries named in the ban make up less than 15% of the globe’s Muslim population. This estimate is pretty accurate, according to NPR’s analysis of the most recent data collected by the Pew Research Center. Judge Clifton also asked whether the ban could be construed as religious discrimination if it affected such a small percentage of the world’s Muslims. Washington state Solicitor General Noah Purcell noted that the burden of proof was not so broad but, rather, to establish discrimination is to prove it was motivated, in part, by a desire to harm the targeted group.
Limits of presidential powers: The U.S. Department of Justice argued that the president has broad powers regarding national security and immigration, noting it was inappropriate for judges to “second-guess” his judgment. The judges, on several occasions, prompted how far those powers extended.
The judges will decide solely on whether or not to reinstate President Trumps’ travel ban, even though the questions during oral arguments delved into constitutional law.
A ruling is expected later in the week. If the court reinstates the ban, attorneys for Washington and Minnesota could request a lower court grant a preliminary injunction to once again suspend the ban. No matter what the 9th Circuit holds, the case is likely to be appealed all the way to the U.S. Supreme Court.