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LISTEN: Lawyers argue travel ban before appellate court judges

Court ruling may set up showdown in Supreme Court
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Posted at 1:44 PM, Feb 07, 2017
and last updated 2017-02-07 19:43:22-05

Three appellate court judges heard arguments via telephone over reinstating President Trump's immigration order. 

During the hour-long hearing for State of Washington & State of Minnesota v. Trump, lawyers for the state of Washington and Washington D.C. argued the merits over a temporary freeze on the order signed by the president almost two weeks ago.

Judges William C. Canby Jr., Michelle T. Friedland, and Richard R. Clifton listened to arguments from August E. Flentje, a Department of Justice attorney who argued for a stay on the order, and Noah G. Purcell, Washington state's solicitor general who argued for the freeze.

The judges will now take what they've heard and arrive at a ruling, expected sometime this week, but not before a heated exchange between judges and both lawyers.
 
In his argument, Flentje told the judges that the president's order has to do with risk assessment based on previous Congressional findings and not about a ban on Muslim-majority countries.
"[The order] has to do with the assessment of risk," Flentje said, noting that countries were decided by Congress and former President Barack Obama's administration in 2015 and 2016. "The president struck that balance and the district courts order has disrupted this balance."
 
Purcell argued that the order had already caused harm to states and that a temporary hold to continue the "status quo" was needed to avoid throwing the, "country back into chaos."
However, the judges didn't seem convinced either side was ready to present a case.
 
Judge Friedland asked Flentje," why should we be hearing this now if you say you're going to be presenting evidence later?"
 
"The reason we sought immediate relief and a stay is because the district courts decision overrides the presidents," Flentje said.
 
Later, Judge Clifton pressured Purcell to produce evidence - just as judges had pressured Flentje.
"Don’t tell us you need more time, you're the one that sought the temporary restraining order," Judge Clifton said, noting they had just faulted the government for the same thing. "So far I have heard a lot of reference to evidence and a lot more references to allegations.
 
"I don't think allegations don’t cut it at this stage."

The proceeding's audio was livestreamed and the court provided links to court documents due to a high level of interest in the case.

Listen to audio from the Ninth Circuit Court of Appeals livestream:

Last week, U.S. District Court Judge James Robart, of Seattle, placed a nationwide freeze on the president's order, noting that states, "have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. "

The president lashed out on Twitter, calling the judge a "so-called judge" and telling Americans that if something bad happens as a result, to "blame him and the court system."

The ban, however, was upheld by a federal judge in Boston just before the Washington judge's broader ruling overrode it.

Related: DC Daily: President Trump's travel ban goes before California court

Legal scholars agree the Ninth Circuit decision will likely come down this week in favor of the freeze, setting up a possible showdown in the U.S. Supreme Court over the travel ban.

Pres. Trump's executive action was signed on Jan. 27, and placed a temporary ban on travel from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.