Judge Clifton asked Flentje if there is “any reason for us to think that there’s a real risk” that warranted Trump’s executive order, which banned travel into the U.S. from seven countries with high Muslim populations, and barred refugees from around the world. Flentje insisted that there was, which is why President Trump signed the order, but he didn’t give much detail.
Judge Canby challenged the necessity to target the specific countries mentioned in the order. “How many federal offenses have we had from people who came in with visas from these countries?” he asked rhetorically, adding that there haven’t been any.
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Judge Friedland asked Flentje why they were even having oral arguments in the first place, when the DOJ isn’t planning on presenting evidence until later. Flentje said that it was necessary because the District Court’s decision to block the order overrides the President’s determination of the level of risk the country faces, and it’s President Trump’s job to make those judgments. When asked whether or not those judgments are unreviewable, Flentje first said yes, then immediately backed off by saying there were constitutional limitations, but the court didn’t appear satisfied with his explanation of what they were.
Later in his argument, Flentje argued against Washington and Minnesota’s standing in the case, saying that they shouldn’t be able to bring a claim on behalf of potential individuals who might be affected by the executive order. But the panel shot back, saying that the states argue that universities are affected because a travel ban could strand students and faculty. Since states are proprietors of public universities, they do have their own interest in the case.
It was a tough time for Flentje, but the judges didn’t ease up on Purcell, the solicitor general.
Judge Clifton asked early on, “Why should we care?” Purcell also had to defend his argument that Trump’s order violates the Establishment Clause of the Constitution, which protects religious freedom. The order only targets seven Muslim countries, and not others, leading the court to ask why they should infer religious animus when “the vast majority of Muslims” would not be affected. Purcell responded by saying that there was still evidence that Trump intended the order to be a Muslim ban, as he is known to have asked former New York City Mayor Rudy Giuliani how to make a Muslim ban in a way that was legal.
Purcell’s stronger argument was under the Equal Protection Clause, explaining that people of certain nationalities who have family members in the seven targeted countries would face discrimination under the order.
During Flentje’s rebuttal, the court discussed Trump’s campaign statements about wanting a Muslim ban. Flentje pointed out that District Judge James Robart said he was not going to use campaign statements as evidence. Still, Flentje was asked if the court is supposed to ignore newspaper articles and information that everyone knows, even if campaign statements shouldn’t be given too much weight.
At the conclusion of the hearing, the court announced that they will make a decision as soon as possible, but did not give any indication as to how long it might take.