At least one of the appellate judges considering President Donald Trump's on residents of seven high-risk countries expressed skepticism Tuesday at arguments that it amounts to a Muslim ban.
But the other two judges, both appointees of Democratic presidents, indicated more sympathy for the position advanced by the states of Washington and Minnesota.
"I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected as residents of those nations."
The Ninth U.S. Circuit Court of Appeals must decide whether U.S. District Judge James Robart in Seattle overstepped his authority in issuing a to stop enforcement of Trump's executive order while the civil case plays out. The appeals court could keep the stay in place, overturn it or modify it to apply more narrowly.
Senior Judge Richard Clinton, nominated for the bench by George W. Bush, grilled Washington Solicitor General Noah Purcell over his argument that the order amounts to a violation of the Establishment Clause forbidding the government from favoring one religion over another. He asked Purcell what portion of the world's Muslims are affected by the order.
"My quick penciling suggests it's something less than 15 percent," he said.
Clifton also noted that all seven countries -- Iran, Sudan, Libya, Iraq, Somalia, Syria and Yemen -- previously had been identified as countries of special terror-related concern.
"I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected as residents of those nations," he said. "And where the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny."
Purcell responded that the plaintiffs do not have to show that every Muslim would be harmed, only that religion was a motivating factor behind the executive order. He said Trump's own statements as a candidate calling for a total Muslim ban constitute "rather shocking evidence."
Clifton also pointed out that the United States singles out specific countries all the time.
"We treat people from North Korea differently from people from France," he said.
August Flentje, a lawyer for the Justice Department, said the court should not include reports of statements made by Trump or his adviser and instead stick to the text of the order.
"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," he said. "That is very troubling second-guessing of the national security decision made by the president."
Later, Clinton pressed Purcell again on a lack of evidence. To prevail, he noted, the plaintiffs need to demonstrate they are likely to ultimately win the case on the merits.
"So far, I haven't heard a lot of reference to evidence," he said. "A lot more references to allegations, and I didn't think allegations cut it at this stage."
Purcell said it always has been the role of the courts to provide a check on the abuse of executive power.
"That judicial role has never been more important in recent memory than it is today," he said. "What the president is asking this court to abdicate that role here, to reinstate the executive order, without meaningful review and to throw this country back into chaos."
But Flentje reminded the judges that it was Congress and former President Barack Obama who identified the seven countries as posing a special risk.
"This judgment was well within the president's power as delegated to him by Congress," he said.
Flentje said the president had an obligation balance the national interest of welcoming people into the country against the duty to safeguard the American people.
"The president struck that balance and the district court's order upset that balance," he said.
But Flentje appeared unsteady under aggressive questioning by Judge Michelle Friedland, an Obama appointee. He could not answer, for instance, when asked how many terrorism-related arrests had been made of people who had traveled from the seven countries.
Flentje asked the judges to limit the scope of the temporary restraining order if they decided to keep it in place. He said the interests of the states are limited -- at best -- to students and professors at state universities and legal residents.
"The injunction goes far beyond that," he said, noting that Washington and Minnesota could not demonstrate harm by blocking refugees and foreigners who never had been to the United States and no connection to the states.
Friedland said the court would rule soon. The losing side almost certainly will appeal to the Supreme Court.