President Donald Trump‘s administration asked a U.S. appeals court on Tuesday to rule a federal judge was wrong to suspend a temporary travel ban the president imposed on people from seven Muslim-majority countries and all refugees.
“Congress has expressly authorized the president to suspend entry of categories of aliens,” attorney August Flentje, special counsel for the U.S. Justice Department, said under intense questioning from a three-judge panel of the 9th U.S. Circuit Court of Appeals.
“That’s what the president did here,” Flentje said at the start of an hour-long oral argument conducted by telephone and broadcast live online. He said the president’s order was valid under the U.S. Constitution.
The court said at the end of the session that it would issue a ruling as soon as possible. Beforehand, the court said it would likely rule this week but not on Tuesday. The matter is ultimately likely to go to the U.S. Supreme Court.
Trump’s order barred travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering for 90 days and all refugees for 120 days, except refugees from Syria, whom he would ban indefinitely.
Trump, who took office on Jan. 20, has defended the measure, the most divisive act of his young presidency, as necessary for national security.
A federal judge in Seattle, responding to a challenge by Washington state, suspended the order last Friday.
Individuals, states and civil rights groups challenging the ban said Trump’s administration had offered no evidence it answered a threat. Opponents also assailed the ban as discriminatory against Muslims.
The states of Minnesota and Washington brought the case against the Trump administration.
The judges asked the U.S. government attorney what evidence the executive order had used to connect the seven countries affected by the order with terrorism in the United States.
“These proceedings have been moving very fast,” Flentje said, without giving specific examples.
He said both Congress and the administration had determined that those seven countries posed the greatest risk of terrorism and had in the past put stricter visa requirements on them.
“I’m not sure I’m convincing the court,” Flentje said at one point.
Noah Purcell, solicitor general for the state of Washington, began his argument urging the court to serve “as a check on executive abuses.”
“The president is asking this court to abdicate that role here,” Purcell said. “The court should decline that invitation.”
The judges pummeled both sides with questions.
Judge Richard Clifton pushed for evidence that the ban discriminated against Muslims and said he was hearing more allegations than evidence.
“I don’t think allegations cut it at this stage,” said Clifton, an appointee of former President George W. Bush, a Republican like Trump.
The other two members of the panel were appointed by former Democratic Presidents Jimmy Carter and Barack Obama.
Trump frequently promised during his 2016 election campaign to curb illegal immigration, especially from Mexico, and to crack down on Islamist violence. His travel ban sparked protests and chaos at U.S. and overseas airports.
National security veterans, major U.S. technology companies and law enforcement officials from more than a dozen states backed a legal effort against the ban.
“I actually can’t believe that we’re having to fight to protect the security, in a court system, to protect the security of our nation,” Trump said at an event with sheriffs at the White House on Tuesday.
Although the legal fight over Trump’s ban is ultimately about how much power a president has to decide who cannot enter the United States, the appeals court is only looking at the narrower question of whether the Seattle court had the grounds to halt Trump’s order.
“To be clear, all that’s at issue tonight in the hearing is an interim decision on whether the president’s order is enforced or not, until the case is heard on the actual merits of the order,” White House spokesman Sean Spicer said.