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ACLU: We’re in a Dangerous Situation as Gov’t Claims That Courts Have No Role Reviewing Muslim Ban

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The Ninth U.S. Circuit Court of Appeals heard arguments Tuesday on whether to restore President Donald Trump’s executive order banning people from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen from entering the United States. The case was brought by the states of Washington and Minnesota. The emergency hearing came just days after a judge in Seattle imposed a nationwide temporary restraining order on the ban. Justice Department lawyer August Flentje questioned the court’s authority to review Trump’s executive order, while the state of Washington argued the court must provide a check on the executive branch. We air excerpts of the oral arguments and speak to ACLU attorney Lee Gelernt, who presented the first challenge to Trump’s executive order on immigration. His argument resulted in a nationwide injunction.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The Ninth U.S. Circuit Court of Appeals heard arguments Tuesday on whether to restore President Donald Trump’s executive order banning people from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen from entering the United States. The case was brought by the states of Washington and Minnesota. The emergency hearing came just days after a judge in Seattle imposed a nationwide temporary restraining order on the ban. On Tuesday, three judges on the Ninth Circuit heard oral arguments via telephone. Two of the judges were appointed by Democrats—William Canby and Michelle Friedland—and one by a Republican—Richard Clifton. Justice Department lawyer August Flentje argued Trump’s executive order was constitutional.

AUGUST FLENTJE: Under Section 212(f), Congress has expressly authorized the president to suspend entry of classes of aliens when it is—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. The district court’s order, which contained no assessment of the legality of the order, was in error, and we encourage the court to stay.

AMY GOODMAN: During his argument, the Justice Department lawyer, August Flentje, questioned the role of the court in reviewing the president’s actions.

AUGUST FLENTJE: The reason we sought immediate relief and a stay is because of the court’s—the district court’s decision overrides the president’s national security judgment about the level of risk. And we’ve been talking about the level of risk that is acceptable. As soon as we are having that discussion, it should be acknowledged that the president is the official that is charged with making those judgments. I’d also like to talk briefly—

JUDGE MICHELLE FRIEDLAND: So, are we back to—I mean, are you arguing then that the president’s decision in that regard is unreviewable?

AUGUST FLENTJE: The—uh, yes.

AMY GOODMAN: Noah Purcell, the solicitor general for the state of Washington, said it was the court’s role to serve as a check on the executive branch.

SOLICITOR GENERAL NOAH PURCELL: It has always been the judicial branch’s role to say what the law is and to serve as a check on abuses by the executive branch. That judicial role has never been more important in recent memory than it is today. But the president is asking this court to abdicate that role here, to reinstate the executive order without meaningful judicial review and to throw this country back into chaos.

AMY GOODMAN: To talk more about the legal fight against Donald Trump’s executive order, we’re joined by Lee Gelernt. He is an ACLU attorney who presented the first challenge to Trump’s executive order on immigration. His argument resulted in a nationwide injunction.

Well, it’s great to have you with us today.

LEE GELERNT: Thank you for having me.

AMY GOODMAN: What do you make of the court hearing yesterday?

LEE GELERNT: You know, they were well prepared. I would say, listening to it, it’s always difficult, you know, to predict what a court will do, but they gave—I think they asked very pointed, tough questions of the U.S. government, and, in particular, sort of wanted to know: Could they review this? Because I think that’s the sort of takeaway from all this. Is the administration saying that the courts have no role? Because if the courts have no role, we’re in a dangerous situation. And so, I think they properly pressed the U.S. government: What’s our role? And are you really saying there’s no role here? And I think—

AMY GOODMAN: What do you mean by “role”?

LEE GELERNT: Right. And so, that they can review what the president did. There’s no question that the president and Congress are entitled to some deference when they act in this area. But the U.S. government is coming dangerously close to saying, “If the president says it’s OK, then it’s OK.” And I think what you’ve seen from the panel last night, but also from all the courts around the country, is, no, no, no, no, the courts have the final word on what the Constitution means, and the Constitution is ultimately paramount. And that, I think, is what’s been heartening about what’s happened since the executive order. We went in within 24 hours of the executive order being passed, and by Saturday night, one day later, we had a nationwide injunction from Judge Donnelly in Brooklyn. And I think it gave everyone something to rally around, that the courts were going to play their traditional role. And so, that’s what I think has been heartening about this last 10 days.

AMY GOODMAN: Let’s go back to the hearing. Judges William Canby—he was a Carter appointee—and Judge Richard Clifton, a George W. Bush appointee, questioned Justice Department attorney August Flentje on what oversight presidential orders can be subject to. This, first, is Judge Canby.

JUDGE WILLIAM CANBY: Could the president simply say in the order, “We’re not going to let any Muslims in”?

AUGUST FLENTJE: That’s not what the order does here.

JUDGE WILLIAM CANBY: I know. I know that.

AUGUST FLENTJE: And the order relies—sorry, your honor.

JUDGE WILLIAM CANBY: Could he do that? Could he do that?

AUGUST FLENTJE: That’s not what the order does.

JUDGE WILLIAM CANBY: Would anybody be able to challenge that?

AUGUST FLENTJE: That’s not what the order does here.


AUGUST FLENTJE: I do really feel—I do want to—

JUDGE WILLIAM CANBY: It’s a hypothetical question.

AUGUST FLENTJE: —get to one key point.

JUDGE RICHARD CLIFTON: Well, we’d like to get to an answer to that question, I mean, because it speaks back to the standing issue. If the order said Muslims cannot be admitted, would anybody have standing to challenge that?

AUGUST FLENTJE: I think Mandel and Din give a route to make a constitutional challenge if there were such an order. It would be by a U.S. citizen with a connection to someone seeking entry. This is a far cry from that situation.

AMY GOODMAN: Can you comment on this, Lee Gelernt?

LEE GELERNT: Yeah. You know, the administration is trying to say, “Look, this is not a Muslim ban. The word 'Muslim' doesn’t appear, or 'Islam' doesn’t appear, in the order.” Well, that’s not what the courts do. The courts aren’t that easily fooled. What they do is look behind the face of the document. That’s standard Supreme Court law. Because, otherwise, you could have a state, the federal government, the president doing something with real discriminatory intent and then simply take out a few words. And I think that’s what—you know, the administration ultimately was caught on that when former Mayor Rudy Giuliani said, “Well, I told them this is how to do it.”

AMY GOODMAN: Actually, I want to go to—


AMY GOODMAN: —Rudolph Giuliani. He was speaking on Fox when he made this comment.

RUDY GIULIANI: I’ll tell you the whole history of it. So, when he first announced it, he said, “Muslim ban.” He called me up. He said, “Put a commission together. Show me the right way to do it legally.” I put a commission together with Judge Mukasey, with Congressman McCaul, Pete King, whole group of other very expert lawyers on this. And what we did was, we focused on, instead of religion, danger! The areas of the world that create danger for us, which is a factual basis, not a religious basis. Perfectly legal. Perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.

AMY GOODMAN: And this is December 2015, not a surrogate for Donald Trump, but Donald Trump himself calling for a “total and complete shutdown” of the entry of Muslims to the United States.

PRESIDENT-ELECT DONALD TRUMP: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States, until our country’s representatives can figure out what the hell is going on. We have no choice. We have no choice.

AMY GOODMAN: So, these statements might impact the court’s ruling. Let’s go to another clip from the hearing, Judge Clifton asking Department of Justice lawyer August Flentje about anti-Muslim statements attributed to Trump and his advisers during his campaign. We hear first from the Justice Department attorney.

AUGUST FLENTJE: It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles. And that’s what has happened here. That is not—that is a very troubling second-guessing of the national security decision made by the president. And the notion that we are going to go back into court and—

JUDGE RICHARD CLIFTON: Do you deny the action—stop, stop. This is Judge Clifton. Do you deny that in fact the statements attributed to then-candidate Trump and to his political advisers, most recently Mr. Giuliani—do you deny that those statements were made?

AUGUST FLENTJE: Judge Clifton, I—no. I would note that Judge Robart himself said that he wasn’t going to look at campaign statements. I do—and I think that what we—

JUDGE RICHARD CLIFTON: No, that’s—but, you see, that’s a different point. I mean, I understand the argument they shouldn’t be given much weight. But when you say we shouldn’t be looking at newspaper articles, let’s—we’re all on the fast track here. Both sides have told us it’s moving too fast. Either those kind of statements were made or they’re not. Now, if they were made but they were made not to be a serious policy principle, I can understand that. But if they were made, it is potential evidence. It is a basis for an argument. So I just want to make sure I know what’s on the table.

AUGUST FLENTJE: Well, those are in the record. But I think my point is a little narrower, that in the expedited procedure of a TRO, taking this extraordinary action of halting this order, that the president determined was in the national security interest of the United States, is—is an unwise course. And it should be stayed.

AMY GOODMAN: So that’s the Department of Justice lawyer, August Flentje. Lee Gelernt, if you can explain? Because he makes the point: Only look at what’s on four corners of the document; don’t look at the campaign; don’t look at what people say.

LEE GELERNT: Right, right. That’s wrong. You know, the Supreme Court has said over and over, you can look beyond the four corners of the document if there is evidence of discriminatory intent. And we’re not talking about a newspaper article. We’re talking about then-candidate Trump’s own statements, and not just one statement. If there was one offhand statement, you know, that’s one thing. But it’s over and over and over. And I think everyone knew what he intended with this executive order.

The other thing I would point out that’s getting lost is the order, on its face, discriminates among religions, not by denomination, but it does talk about minority religions and majority religions. And even that is prohibited by the Establishment Clause. The government is not supposed to be in the business of choosing between religions, particular religions, or even minority and majority. And after the executive order was signed, he very clearly said the minority religion provision was intended to benefit Christians. And in this country and under our Constitution, we don’t favor one religion over another. I mean, that’s the most bedrock principle in our country.

AMY GOODMAN: So, explain where this goes right now.


AMY GOODMAN: They say they’re going to make a decision. It could be handed down today, tomorrow, the next day. What does it mean? What are the possible choices these judges can make?

LEE GELERNT: Right. So, one thing is they can just simply affirm the district court and say, “Look, we’re going to keep everything on hold while this case moves forward,” because this is ultimately just temporary relief. Then, the U.S. government will have the opportunity to go to the Supreme Court, if they choose. It would be on a very fast track. I don’t know—everyone is assuming they will. I don’t know that they will, when serious lawyers look at this and see how little time there is, because the case is moving on a very fast track back in district court. If it’s overturned, if the stay is overturned, Washington could go to the Supreme Court. You know, whether either side will remains to be seen.

But, ultimately, the case has to go forward, just like our case in New York, our case in Maryland—the ACLU’s cases—and other cases. Ultimately, we’re going to have to reach the merits of all this, because this is all preliminary skirmishes to keep the status quo. What this is all about is: Ultimately, who’s going to be harmed more during the interim, when the case is going forward? I think it’s very clear, with refugees abroad who are in real danger and all of the other harms that befell people, that if you keep the executive order in place, people are going to be really harmed. The U.S. government could not come in with a countervailing harm, especially because all these people have been vetted. I mean, in our case, it was an—it was an Iraqi who helped our U.S. military. And—

AMY GOODMAN: This is the first case you brought—


AMY GOODMAN: —racing to the Brooklyn court.


AMY GOODMAN: It was two men that you were representing.

LEE GELERNT: And on behalf of a whole class nationwide. And those were people who helped our U.S. military. But the government is putting out this narrative that we don’t know who’s coming in. But these were people who actually helped, put their lives at stake for our U.S. military. And then, all of a sudden, they’re landing here, and they’re saying, “President Trump doesn’t want you, even though you put your lives at stake, at risk.”

AMY GOODMAN: So, President Trump clearly is not used to having people review his decisions as CEO of the Trump empire. So his first reaction was to lash out at the judge, call him a “so-called judge.” The significance of this, very quickly, Lee?

LEE GELERNT: Yeah. The rule of law is critical. The president has to respect the courts. I mean, that may be the overriding issue here. That’s bigger than any particular civil liberties issue.

AMY GOODMAN: And clearly, there is trouble in the administration. You have the lawyer, Flentje, being replaced—coming into this at the very last minute—

LEE GELERNT: Right, right, right.

AMY GOODMAN: —in the hours before he argued this, in this very odd telephone call, where one of the judges was, what, in—was in Hawaii—


AMY GOODMAN: —and another judge—everyone was in a different place, and this was argued over the phone. He comes in, and when he’s seeing he might not be doing so well at the end, he says, “Well, for one thing, at least don’t allow people who have never been in the United States to come into the United States”—


AMY GOODMAN: —”if you’re going to make a partial decision.” What about that?

LEE GELERNT: Yeah, a fallback argument. I don’t think it’s possible to sort of split it up now, especially how quickly things are moving, how the administration would actually implement such a division between people. And everyone is being harmed. I don’t think that’s a wise course. But you can see that the government fell back on something, realized maybe they weren’t going to get everything they wanted, and tried at the last minute some sort of fallback, minor.

AMY GOODMAN: Now, let me read you a tweet that just came out. Donald Trump didn’t respond to the hearing last night, but he did say, “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!” And then he tweeted, “I will be speaking at 9:00 A.M. today to Police Chiefs and Sheriffs and will be discussing the horrible, dangerous and wrong decision.......” And he moves on.

LEE GELERNT: Yeah. We would prefer not to see the president say to the courts, “If you do this, the whole country’s security is on you.” I mean, I think the courts are doing what they are supposed to do and looking at the Constitution. They are doing their best. And they are a co-equal branch of the government.

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Next story from this daily show

Inside the ACLU’s Fight Against Trump’s Muslim Ban, with the Attorney Whose Lawsuit First Halted It

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