San Francisco: President Donald Trump's controversial immigration order on Wednesday faced intense scrutiny as a court of appeals grilled the Trump Administration whether the travel ban unconstitutionally discriminates against Muslims and questioned the arguments that curbs were motivated by national security concerns.
Asserting that President Trump was within his constitutional rights and obligations to sign the executive order that temporarily bans immigration from seven Muslim-majority countries, the Justice Department urged court of appeals to reinstate the travel ban -- put on hold by the courts last week.
During the hour-long hearing, conducted by phone, before a three-judge panel of the Ninth US Circuit Court of Appeals here, the Justice Department lawyer August Flentje said in signing the executive order Trump struck the balance between national security and the practice of allowing people from entering the country.
"The President struck that balance, and the district court's order has upset that balance. This is a traditional national security judgement that is assigned to the political
branches and the president and the court’s order immediately altered that," Flentje said in his hearing which was telecast live by a number of television news channels.
The lawyer urged the San Francisco court to remove the halt on the executive order by a court in Seattle.
"The district court's decision overrides the President's national security judgment about the level of risk and we've been talking about the level of risk that's acceptable," he said.
Flentje's assertion led to a series of rapid fire exchanges with all three judges pressing him to explain the limits of his position.
"Has the government pointed to any evidence connecting these countries with terrorism," asked Judge Michelle Friedland.
The Court of Appeals is expected to give its verdict soon. The case is likely to hit the Supreme Court in coming days.
The three-judge panel asked the government lawyer whether the Trump administration's national security argument was backed by evidence that people from the seven countries posed a danger.
"Has the government pointed to any evidence connecting these countries with terrorism," asked Judge Friedland. "Are you arguing then that the President's decision in that regard is unreviewable (by a court)?" he asked another time.
Another judge Willian Canby asked if the President could simply say the US will not admit Muslims into the countries.
"Could he do that? Would anyone be able to challenge that?" he asked.
"That's not the order. This is a far cry from that situation," Flentje replied. But said that a US citizen with a connection to someone seeking entry might be able to challenge the executive order if that were the case.
President Trump's controversial executive order barred entry to all refugees for 120 days and to travellers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days, triggering chaos at US airports and worldwide condemnation.
Pleading before the court to continue the stay on the executive order, Noah Purcell, Solicitor General of Washington State challenged the claims that there is no evidence of religious discriminatory intent behind the Trump’s order.
"There are statements that are rather shocking evidence of intent to harm Muslims," he alleged.
"You don't have to prove it harms every Muslim – you just need to show the action was motivated in part by animus," he argued.
"It would not remedy the order's violation of the establishment clause which harms everyone in our state...by favouring one religious group over another. It also would not fully remedy the order's violation of the equal protection law -- denying some of our residents who are here, allowing them to receive those visits and so on," Purcell said.
In his rebuttal, Flentje said the Department of Justice is not saying the case shouldn't proceed.
"But it is extraordinary for a court to enjoin the President's national security determination based on some newspaper articles," he argued.
During the hearing, Flentje cited a number of Somalis in the US who, he alleged, had been connected to the al-Shabab terrorist group after judges asked for the evidence.
Trump last week lashed out over a court order to block the immigration ban, saying on Twitter, "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!"
