Intent of Trump’s immigration order questioned in appeals court

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• AUDIE CORNISH:

  Now for the latest on the ongoing court battle over President Trump's executive order on refugees and immigration.

  A federal appeals court in San Francisco tonight heard arguments on whether to override a lower court's decision to block enforcement nationwide.

  The court live-streamed audio from the room.

  He's part of the opening remarks from August Flentje, special counsel to the U.S. Justice Department, arguing on behalf of the Trump administration.

  (BEGIN VIDEO CLIP)

• AUGUST FLENTJE, SPECIAL COUNSEL TO U.S. JUSTICE DEPARTMENT:

  Congress has expressly authorized the president to suspend entry of classes of aliens when it is debt — when it is necessary or when otherwise it would be detrimental to the interests of the United States.

  That's what the president did here. And the president's determination that a 90-day pause was needed for the seven countries at issue here in order to ensure adequate standards — and that's language from the order — for visa screening was plainly constitutional.

  (END VIDEO CLIP)

• AUDIE CORNISH:

  And one more exchange, this one between Noah Purcell, solicitor-general for Washington State and Judge Richard Clifton.

  (BEGIN VIDEO CLIP)

• JUDGE RICHARD CLIFTON, UNITED STATES COURT OF APPEALS, NINTH CIRCUIT:

  I'm not entirely persuaded by the argument, if only because the seven countries encompass only a, I think, a relatively small percentage of Muslims. I mean…

• NOAH PURCELL, SOLICITOR-GENERAL, WASHINGTON STATE:

  We do not need to prove that this order harms only Muslims or that it harms every Muslim. We just need to prove that it was motivated, in part, by a desire to harm Muslims. I mean there are statements that we've quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims, given that we haven't even had any discovery yet to find out what else might have been said in private.

  I mean the public statements from the president and his top advisers reflecting that intent are strong evidence, certainly at this pleading stage, to allow us to go forward on that claim.

  (END VIDEO CLIP)

• AUDIE CORNISH:

  And we're joined now by NEWSHOUR regular, Marcia Coyle of "The National Law Journal."

  Welcome, Marcia.

• MARCIA COYLE, THE NATIONAL LAW JOURNAL:

  Hi, Audie.

• AUDIE CORNISH:

  All right, so what precisely was the question before the court?

• MARCIA COYLE:

  This three judge panel is looking at the government's appeal of a temporary restraining order that was issued by Judge Robart in Seattle, Washington.

  So the court — the three judge panel is basically going to be looking to see, did Judge Robart abuse his discretion in issuing that temporary restraining order?

  The three judge panel is going to look at certain factors. For example, does the government have a likelihood of success on the merits of its claims here?

  What are the harms?

  Who's being harmed?

  And so it's a very early stage in the proceedings. And the court, I believe, is not intending to rule tonight, even though it had the hearing, but basically, they're just trying to flesh out each side's arguments over the temporary restraining order.

• AUDIE CORNISH:

  And we heard a little bit of that.

  Let's start with the argument from the government.

  How are they defending themselves here?

  And how are the judges responding?

• MARCIA COYLE:

  The government is arguing that the president had broad powers under the law and "The Constitution" to issue this executive order on immigration.

  The judges were concerned, though, almost immediately, with the government attorney's statement that the president issued this order after an assessment of risk that immigrants from these seven countries could pose to the United States.

  One of the judges pressed the government's attorney very hard on what evidence does the government have of the risk coming from immigrants from those countries.

  Another judge pointed out that if you look at the history of terrorist attacks, they do not really come from those countries.

  So the government was saying — telling the court basically that these countries were picked because prior administrations and Congress had labeled them as having had terrorist activity.

  The judges also brought up some of the comments that the president had made referring to whether this is a Muslim ban, whether there's religious discrimination here. One of the judges asked the government attorney can we look at what are allegations of bad faith behind this executive order?

  And the government's attorney said no, that you have to look at the order, the face of the order, and make a determination based on that.

  And the government ultimately was having a problem convincing the judges, it seemed, that the states here did not have the right to be challenging the executive order. But the government said that if we continue convince you, basically, that the states shouldn't be here, the temporary restraining order is over-broad and it should be, at the very least, limited to the people that the state claims are being harmed here.

  And that — those are people who have been in those two states, left maybe to visit, and couldn't come back, left to visit other countries and then couldn't come back, that it should be limited just to those.

• AUDIE CORNISH:

  Now let's go back to the states for a second, because it seems like they were putting their chips on intent and motivation behind the order?

• MARCIA COYLE:

  They were in certain parts of it. The state's attorney, Noah Purcell, he told the court, first of all, that the states did have a right to be challenging the executive order. And he faced a lot of strong questions from the judges as to the history of state standing to sue.

  And then the court moved into some other areas, mostly the claim of religious discrimination here. One judge in particular, Judge Clifton, noted that — and I think we had a snippet — that a very small percentage of Muslims actually were in those countries that have been targeted by the executive order compared to the Muslim population in general and was — you know, how could you say there's discrimination here and where's your evidence?

  And the state's attorney then did put a lot of emphasis on the president's comments and his advisers' comments about looking for a Muslim ban.

• AUDIE CORNISH:

  Marcia Coyle of The National Law Journal, thank you so much for speaking with us.

• MARCIA COYLE:

  My pleasure.