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Appeals Court Panel Dubious
| Tuesday’s high legal drama was seen live-streamed on television and via
A three-judge panel heard arguments by the Justice Department and state of Washington. At least two judges were skeptical about DOJ arguments.
The US Ninth Circuit Court of Appeals is considering whether to uphold or reject US District Court Judge for the Western District of Washington James Robart’s temporary restraining order (TRO), staying Trump’s denial of access to America suspension, affecting seven predominantly Muslim countries until a follow-up ruling decides up or down on making it permanent.
A Ninth Circuit ruling is expected later in the week. It’s imprudent to second-guess its decision. Law Professor Jessica Levinson said “Washington state had a better argument.”
“The Department of Justice attorney (August Flentje) really struggled with articulating why the executive order had to remain in place,” adding:
“The reason you can’t read a lot into oral arguments is that it's the judges’ job to perform a searching inquiry on both sides…It’s (their) job to play devil’s advocate.”
According to Law Professor Arthur Hellman, the Justice Department attorney wasn’t “very well prepared for the questions about standing, though he recovered a bit toward the end of his argument.”
“I was surprised that he didn’t have more examples of terrorist activities by people from the affected countries, even if the examples weren’t in the record.”
At one point, DOJ attorney Flentje said “I’m not sure I’m convincing the court.” Washington state solicitor general Noah Purcell represented his state and Minnesota.
He, too, was challenged by Appeals Court Judge Richard Clifton about evidence proving Trump’s order discriminated on the basis of religion, saying he wasn’t “entirely persuaded” since the travel suspension only affects a small portion of the Muslim world.
If the Ninth Circuit panel upholds Judge Robart’s TRO, the DOJ could either request a full appeals court hearing or ask the Supreme Court to rule on the issue.
If the latter option is chosen and the High Court splits 4 - 4, the lower court ruling stands. Whatever the outcome from this week’s argument, the Supreme Court appears almost certain to be the final arbiter.
Even that may not settle things. A reworked Trump EO or congressional legislation could follow, instituting a travel suspension or ban from designated countries.
One thing looks certain. This issue will be around for a long time. Trump’s order ignited a firestorm. It got his tenure off to a rocky start. It may negatively affect his agenda overall.
Seven countries affected are largely ones America raped and destroyed. They’re all nations affected by US hostility.
No American allies were targeted - not rogue states Israel, Saudi Arabia, Qatar, Turkey and others, entirely responsible complicit with Washington for endless Middle East wars and turmoil.
Furthermore, Trump’s order is entirely political, not about protecting US borders or national security. Achieving these objectives depend on making friends, not enemies.
Muslims worldwide pose no threat to America. ISIS and other Islamic terrorist groups are US creations.
State terrorism is the elephant in the living room. Washington’s imperial madness threatens humanity, the key issue gone unaddressed.
Stephen Lendman lives in Chicago. He can be reached at firstname.lastname@example.org.
His new book as editor and contributor is titled "Flashpoint in Ukraine: How the US Drive for Hegemony Risks WW III."
Visit his blog site at sjlendman.blogspot.com.
Listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network.
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