The government lawyer representing the President argues that the President has the right to declare emergencies based on his judgment. The language in the document is legally clean. The court has no role to play here. That is the administration's argument.
Some of the three judges beg to differ. They argue that the case must be considered in the larger context of what the President and members of his administration have said that describes the intention of the Executive Order. It is a Muslim ban.
Furthermore, the President lies. His statements describing the terrorist threat are unsubstantiated by specific facts.
A witness or subject that lies before the court (or in the court of public opinion) cannot be deemed as authoritative or correct. Furthermore, President Trump has inherited authority by his incumbency. His personal judgment about security risks is already widely challenged by experts in Homeland Security, Defense, and National Intelligence.
It is the President's words that express and condone religious discrimination that is likely to form the noose around his neck in this dispute. Read more analysis and details in the New Yorker article by Amy Davidson. We must wait to see how the court decides.
"If there was a single question at the center of Tuesday afternoon’s hearings on President Trump’s executive order keeping people from seven Muslim-majority nations and all refugees out of the country, it was this: Do the courts, or the American people, have any recourse when the President lies? Judge James Robart, of the U.S. District Court, in Seattle, had granted the states of Washington and Minnesota a temporary restraining order that put a hold on Trump’s ban, pending further hearings in the next two weeks. The Justice Department had gone to the Ninth Circuit Court of Appeals to ask for an emergency stay of that order, meaning that it could continue to keep people out and revoke tens of thousands of visas before any court had a say—and even then, the Trump Administration argued, the courts were not allowed to say much. The three judges on the appeals court—Michelle Friedland, Richard Clifton, and William Canby—wanted to know what, exactly, the emergency was.
From the beginning of the hearing, which took place by conference call at 3 p.m. Pacific Time, with half an hour allotted to each argument, the judges—who said that they would move quickly to make a decision—pushed Flentje on his claims. “Have you offered any evidence to support this need you’re describing for the executive order, or are you really arguing that we can’t even ask about whether there’s evidence because this decision is non-reviewable?” Judge Friedland asked, a few minutes in.
Flentje said that “numerous foreign individuals” had committed crimes since September 11, 2001, and that the President had determined that there were “deteriorating conditions in certain countries.” When he was asked if the government had pointed to any evidence connecting those particular countries to terrorism, he rejected the idea that it had to. “These proceedings have been moving very fast,” Flentje said. He noted that President Barack Obama had once cited these countries in making changes to the visa-waiver program. (Steve Coll has written about why this is a false analogy.) Why shouldn’t President Trump get to do even more?
But there were immigration processes in place, Judge Clifton said. Where was the evidence “that there’s a real risk, or that circumstances have changed?”
“Well, the President determined that there was a real risk,” Flentje said. It was, he added, “understandable” that he had done so, because “the President understands” these matters.
Friedland pressed him again: Was he saying that the President’s determination was “unreviewable”?
“Yes,” Flentje finally said, within “obvious” constitutional restraints. Any judicial review was “limited” and confined to the “four corners of the document”—that is, the court was allowed to make sure that the order was “facially” legitimate, meaning correct in form and citing real laws and deploying the right legal jargon in the right places, a test he said that the executive order “easily” passed. And that was all. They might, in some cases, hear out American citizens who were directly affected, but even there the review was extremely limited.
“We’re not acknowledging any review on the facts of the case,” Flentje said.
Immigration law does give latitude to the President when the country is in danger. But what happens when you have a President who the courts, and any objective person, know tells lies? How should the assertions of danger then be regarded in light of other laws saying, for example, that religion should not be a reason for excluding people? For that matter, how should they be regarded in light of not only the Constitution’s Establishment Clause, which precludes religious tests, but any number of other passages in that document?"
What is incredibly brash and caustic is the President's disregard for the Courts, before and after his incumbency. He attacks the American Political System with abandoned and that is evidence of his undermining his oath to uphold the US Constitution.
Protesters demonstrate in San Francisco against President Trump’s anti-Muslim travel ban.