U.S. appeals court judges posed tough questions about President Donald Trump's immigration order during a hearing on February 7 to determine whether to keep blocking the order.
U.S. Justice Department attorneys asked the San Francisco appeals court to restore Trump's January 27 order, contending that the president alone has the power to decide who can enter the United States.
"Congress has expressly authorized the president to suspend entry of categories of aliens," attorney August Flentje said. "That's what the president did here."
But more than a dozen U.S. states and hundreds of companies obtained a sweeping court block on the order, which temporarily bans all refugees as well as travelers from seven predominantly Muslim nations -- Iran, Iraq, Syria, Somalia, Yemen, Libya, and Sudan -- arguing that it is unconstitutional and has "irreparably harmed" their residents and employees.
The judges -- two appointed by Democratic presidents and one by a Republican -- repeatedly posed tough questions for the Trump administration's lawyer.
Asked by Judge William Canby Jr. to cite an offense committed by anyone who has been granted a visa from the seven banned countries, Flentje admitted there was none in the record.
Circuit Judge Michelle T. Friedland, who was appointed by President Barack Obama, asked if the government had connected any immigrants from the seven banned countries to terrorism.
Flentje said a number of Somalis in the United States have been connected to the Al-Shabab extremist group. He also pointed out that Congress and the Obama administration in 2015 determined that the seven targeted countries posed the greatest risk of terrorism because they either host a significant terrorist presence or are considered safe havens for terrorists.
Still, the questioning on this issue was so intense that Flentje said at one point, "I'm not sure I'm convincing the court."
Skeptical Questions
The justices also grilled the Trump administration attorneys on why U.S. states should not be able to sue on behalf of their residents or on behalf of their universities, which have complained about students and faculty getting stranded overseas.
But the justices also shot some skeptical questions at lawyers for the two U.S. states -- Washington and Minnesota -- which obtained the temporary block on Trump's order.
Judge Richard Clifton, appointed by former President George W. Bush, wanted to know how the order could be considered discriminatory if it potentially affected only 15 percent of the world's Muslims, according to his calculations.
In response, Washington state Solicitor General Noah Purcell cited Trump's campaign statements that he would impose a temporary ban on Muslim immigrants and travelers, although the Trump administration since then has insisted that the immigration order is not targeted at Muslims.
Judge Clifton was unconvinced by the response, saying "I don't think the allegations cut it at this stage."
Earlier on February 7, Trump continued to criticize the numerous opponents of the order for bringing the court challenge.
"I actually can't believe that we're having to fight to protect the security, in a court system, to protect the security of our nation," Trump said, suggesting that terrorist attacks might occur as a result of the court-ordered delay in carrying out the order.
"[Islamic State] said we are going to infiltrate the United States and other countries through the migration," he said. "And then we're not allowed to be tough on the people coming in? Explain that one."
Although the legal fight over Trump's ban is ultimately about how much power a U.S. president has to decide who cannot enter the United States, the appeals court is only looking at the narrower question of whether to uphold a Seattle court's move to temporarily block implementation of Trump's order.
The court is expected to rule later this week on the case, but it may ultimately be appealed and decided by the U.S. Supreme Court.
Separately, Homeland Security Secretary John Kelly conceded in testimony before Congress on February 7 that, given the chaos and confusion that followed announcement of the order, it likely should have been delayed rather than issued abruptly by the White House during Trump's first week in office.