Federal Appeals Court Hears Oral Arguments In Trump Immigration Order Case

Feb 7, 2017
Originally published on February 7, 2017 9:49 pm
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ROBERT SIEGEL, HOST:

Tonight, the legal showdown between the Trump administration and opponents of an executive order on immigration enters a new stage. The order bans travelers from seven majority Muslim countries and all refugees. The Trump administration says the ban is in the interest of national security. Lawyers for the state of Washington call it religious discrimination.

Tonight, a federal appeals court will hear the arguments, and with us to talk about the case is NPR justice correspondent Carrie Johnson. Hiya.

CARRIE JOHNSON, BYLINE: Hi, Robert.

SIEGEL: Set us up. Who's hearing this case tonight?

JOHNSON: A three-judge panel of the U.S. Court of Appeals for the 9th Circuit based on the West Coast. These judges have been randomly chosen to hear motions this month. Two were appointed by Democratic presidents, a third by a Republican president. They're going to be hearing one hour of arguments over the phone. The Trump Justice Department gets half an hour and another half an hour for lawyers for Washington state and Minnesota, which are challenging that executive order, Robert.

SIEGEL: And what are the legal questions on the table here?

JOHNSON: Well, lower court judge James Robart in Seattle has issued a temporary restraining order that stops the two key parts of the immigration ban. The question on the table now is whether this issue is in the public interest. Who exactly is suffering irreparable harm, the White House and national security or refugees and travelers who are impacted by this ban? And who's likely to win on the substance or on the merits of the case when they finally get to that point down the road?

SIEGEL: Well, who do you think has the stronger argument here, the Trump White House or the states that are suing?

JOHNSON: The president historically has a great deal of power at the border. The immigration law allows him to bar entire classes of people from entering the U.S. if he thinks they're detrimental to American interests. Trump has said again and again he's acting to protect national security.

But the states who are suing say this whole ban has been chaotic. People traveling didn't get due process. They've been separated from their families. Businesses and schools are being harmed. And they say the president's own words and tweets suggest that Trump really wants to discriminate against Muslims, which would be unconstitutional.

SIEGEL: And what is the administration's legal team saying?

JOHNSON: Well, the Trump administration has been arguing there's no need for the court to review this order at all. It's flatly within the president's power to do this kind of thing. And he's concerned about national security.

Last night, there was a change, though. The Justice Department said, maybe we can't bar people who have been in the U.S. and went overseas to travel and now can't come back, or maybe we can't bar people who've been here and want to come back and forth. Maybe we can just bar people who have never been on American soil at all. That's a big shift in position. It may be where this court ends up.

SIEGEL: This is going to be heard by three federal judges. In less than an hour, they'll start. You say it's an hour - half an hour of arguments for each side. When might the court decide?

JOHNSON: Well, this whole process has been moving at lightning speed for the courts. You know, the judicial system runs on its own time. And the court has said through the clerk's office today, don't expect a ruling today but probably by the end of the week. And it's not over then, Robert, because the losing side could ask the full 9th Circuit Court of Appeals to hear this case, or the losing side could go up to the U.S. Supreme Court. The Supreme Court, though, is shorthanded, just 4 to 4. And in the event of a tie vote, the lower court decision here by the 9th Circuit would stand.

SIEGEL: OK. NPR's Carrie Johnson, thanks.

JOHNSON: You're welcome. Transcript provided by NPR, Copyright NPR.