“The exclusion of aliens is a fundamental sovereignty” that is within presidential and Congressional authority, August Flentje, special counsel to the President, argued during the hearing.
“We are not acknowledging limited review,” on this incidence of presidential power because of the current standing of the case, Flentje said.
The state of Washington, the plaintiff, does not have a comparable interest in the US Constitution, as does the White House, Flentje contested. Nevertheless, Flentje said at one point, “I’m not sure I’m convincing the court.”
Judge Canby of the 9th Circuit Court asked Trump’s lawyer how many criminal offenses have been committed by those arriving from the seven countries enumerated in the ban. Flentje answered ‘none.’ This answer comports with a recent paper from the Cato Institute pointing out that, from 1975 to 2015, no immigrants arriving from the seven nations claimed American lives.
“Foreigners from those seven nations have killed zero Americans in terrorist attacks on US soil between 1975 and the end of 2015,” Cato’s immigration analyst Alex Nowrasteh wrote. “The measures taken here will have virtually no effect on improving US national security.”
Legal analysts have observed that attempting to predict court decisions based on the preliminary stage of oral arguments is dubious at best.
Noah Purcell, solicitor general of the state of Washington, argued that “chaos” might ensue if judicial review did not take place with respect to the executive order. The court is supposed to act as a “check on executive abuses,” Purcell said. “The President is asking this court to abdicate that role here” he said, adding, “the court should decline that invitation.”
Faculty members at Washington-state-based universities were stranded overseas and the state lost tax revenue as a result of the ban, just a few of the “irreparable harms” claimed to have been suffered by the state of Washington, Purcell argued. Thousands have been affected, according to the solicitor general.
“We just need to prove it was motivated in part by intent to harm Muslims” Purcell added, citing public statements from Trump and his advisers. Purcell argued that one group has been disproportionately harmed. The judges questioned the likelihood of success that the ban would, in fact, harm Muslims specifically.
Purcell admitted he had not ‘done the math’ needed to answer the question, but later stated that, “It’s the party seeking a stay that has to show the likelihood of success.”
The attorney for the state of Washington added that the federal government has not been able to satisfactorily explain how the restrictions work, complicating the task of determining the likelihood that the ban will harm would-be migrants.
“Don’t tell us you need more time,” a judge said, adding that Purcell had only produced allegations but nonetheless moved forward with overturning the ban at the district appeals court level. “I don’t think allegations cut it at this stage.”
A decision to uphold Washington state’s overturning of the ban is not expected by the end of the day.
At least 115,000 people tuned into the hearing, the Des Moines Register reported.