Listening to the live oral arguments in Washington State v. Trump, it seems clear that the three appellate judges of the Ninth Circuit Judges Michelle Friedland, Richard Clifton, and William Canby were somewhat confused about how narrowly to frame a fast ruling on the Trump administration's appeal, and how to address the case before them, with multiple questions raised as to whether they should treat the state of Washington's temporary restraining order as a request for a preliminary injunction. If one were to read the tea leaves of the judges' questions, though, as commentators on the New York Times' live analysis did, Friedland sounds like the clearest vote against the administration's appeal, and Clifton sounds more sympathetic to the President's order, with Canby asking fewer questions and likely serving as the swing vote.
August E. Flentje, Special Counsel to the Assistant U.S. Attorney General, presented the administration's case for staying Friday's restraining order issued by U.S. District Judge James Robart, restating as they have in briefs that Trump's order was "well within the president’s power" and is constitutional. Flentje further cited that the list of seven countries here was first created by Obama however that list simply said that passport holders from those countries required special visas, and was never an outright ban on their travel.
Both Friedland and Clifton question Flentje about whether there was any "irreparable harm" being caused by letting people in from these countries, with Clifton pointedly asking "Is there any reason to think something has changed to create a real risk?" Flentje simply replied that the President determined there was a real risk.
Friedland also asked if the president's order was unreviewable by the judicial branch, and Flentje said "yes." Canby then quickly asked, "Could the president simply say in the order, ‘We’re not going to let any Muslims in?’”
Turning to Noah Purcell, the solicitor general for the state of Washington, questions tended to focus on legal procedure more than merit which could be a clue as to the judges' thinking, and the likelihood they will deny the administration's stay.
Judge Clifton repeatedly asked whether standards of "likelihood for success" had been met, noting that the state's case appears more to be a request for an injunction since they have already indicated that the restraining order will extend beyond 14 days. He also noted that, given the speed at which these briefs had been filed, the state's case has little evidence so far, and mostly allegations. He also questioned how much irreparable harm was actually being done to the people of Washington, including its permanent residents from the seven countries affected by the ban. At one point Clifton said by his simple "penciling" he figured only about 15 percent of the world's Muslims resided in these seven countries Yemen, Iraq, Iran, Syria, Somalia, Libya, and Sudan and he questioned whether the executive order could really be interpreted as being specifically religiously biased. "I have trouble understanding why we are supposed to infer religious animus when in fact the vast majority of Muslims would not be affected as residents of those seven countries."
Purcell argued that they had plenty of intent evidence of religious bias from President Trump and his agents in public statements, even short of the benefit of discovery seeking private statements about their intent setting the stage for many of Trump's incendiary blanket statements about radical Muslims to come back to haunt him in further court proceedings.
Clifton further grilled Purcell on whether Congress had not identified terrorist threats from these same countries, and whether previous executive orders such as one signed by President Reagan regarding Cuban nationals had not singled out people from specific countries.
Judge Friedland asked whether the state of Washington's claims of violation of the constitution's Establishment Clause should be considered, or if they should be considering equal protection, because aren't these claims "redundant"? Purcell replied that the states would be satisfied for a reasoned decision considering the Establishment Clause, but he felt that either held in this case. He also suggested that the judges could rule based on congressional acts on immigration instead if they did not want to rule on constitutionality.
Clifton questioned Flentje about whether they should be evaluating the executive order as written, or based on the "revised" order that makes exception for green card holders and permanent residents he asked whether it shouldn't be the President himself who amends the order.
In a closing statement, Flentje said, "It is extraordinary for courts to second-guess the President’s national security decisions based on some newspaper articles," but Clifton quickly lashed back on that point, asking whether Flentje denied that the President or his staff had made any of the anti-Muslim statements that the plaintiffs claimed in their exhibits. He mostly just skirted this question, and pointed out that Judge Robart had said something about avoiding "campaign statements."
Friedland, who was holding the gavel in this hearing, said that the court recognized the urgency and would issue a ruling "as soon as possible." As the New York Times notes via the court's website, a ruling is not expected tonight, but is likely "this week."
The audio of the entire hearing is now archived below.