As a three-judge appellate panel peppered lawyers for the federal government and Washington State with questions Tuesday concerning Donald Trump’s Muslim ban, one point became crystal clear: The Trump administration believes the pr*sident's power in the area of immigration should be absolute.
Adam Liptak homed in on a key exchange between the Ninth Circuit judges and the government lawyer arguing that a temporary restraining order placed on the ban should be overturned.
“Are you arguing, then, that the president’s decision in that regard is unreviewable?” Judge Michelle T. Friedland asked.
The Justice Department lawyer, August E. Flentje, paused. Then he said yes.
Another judge, Judge William C. Canby Jr., asked, “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’”
Liptak wasn't the only legal observer struck by the interaction. ACLU deputy legal director Cecillia Wang observed, Flentje "wants unchecked power for President Trump.” It was a point on which the judges seemed skeptical, wrote Liptak and other legal reporters.
At another juncture, Judge Richard Clifton, a George W. Bush appointee, pressed Flentje to explain why leaving the temporary restraining order in place would cause the federal government irreparable harm.
Clifton said the administration had only “pretty abstract” evidence that irreparable harm would result if the temporary restraining order were not removed.
“It isn’t like there haven’t been processes in place” to provide extra screening of visa applications from those countries, he said.
“Is there any reason for us to think there is a real risk?” Clifton asked.
"The president determined that there was a real risk," Flentje responded. It was tantamount to saying, there’s a real risk because Donald Trump said there is. Even though a president is imbued with broad powers on immigration issues, it wasn’t a particularly commanding argument.
UC Irvine Law School Dean Erwin Chemerinsky said he was struck by the difficulty the federal lawyer had in providing evidence that removing the hold would cause irreparable harm.
Later, Flentje himself even admitted, "I'm not sure I'm convincing the court,” before going on to make another point.
In contrast, Washington State solicitor general Noah Purcell was quick to outline the harms that reinstating the ban would do the state, including leaving university students and faculty stranded, separating families, harming businesses and producing a loss of tax revenue, among other things.
Overall, the questioning was tough on both sides of the issue, and the panel is expected to rule this week on whether to keep the temporary restraining order in place. Regardless of outcome, the suit is expected to be appealed to the Supreme Court.
But the argument presented by the government lawyer was a window into this administration’s soul: Trump is the ultimate authority. He is the decider. And there should be no limit to his rule.