The US Justice Department faced tough questioning on Tuesday as it urged a court of appeals to reinstate President Donald Trump’s travel ban targeting citizens of seven Muslim-majority countries — put on hold by the courts last week.
The latest twist in the legal showdown comes four days after a federal judge suspended Trump’s decree, opening US borders back up to the thousands of refugees and travellers it had suddenly barred from the country.
Three judges from an appellate court in San Francisco chaired the hour-long telephone hearing followed online by more than 130,000 people — a record, the court said — and broadcast live to millions more on television.
The high-stakes hearing saw an attorney for the government argue that Trump’s immigration curbs were motivated by national security concerns and that the federal judge had overstepped his authority in suspending them.
“This is a traditional national security judgment that is assigned to the political branches and the president,” argued the Justice Department lawyer, August Flentje.
He said Trump acted perfectly within his constitutional powers and those delegated to him by Congress in issuing the January 27 executive order in the interest of the United States.
Tuesday’s hearing was focused on whether to lift the suspension of the ban, not on the constitutionality of the decree itself — a broader battle which looks likely to go all the way to the Supreme Court. A court spokesman said a ruling was likely later this week.
During the hearing the three-judge panel often appeared skeptical, with Judge Richard Clifton saying at one point that the government’s argument was “pretty abstract.”
The judges questioned Flentje about the evidence connecting the seven countries targeted to terrorism, and pressed him on whether the ban amounts to religious discrimination — as its opponents claim.