- The Washington Times - Tuesday, February 7, 2017

The administration defended President Trump’s extreme vetting executive order in both the courts and Congress on Tuesday, saying that while the rollout may not have gone well, the president acted within his legal powers.

Homeland Security Secretary John F. Kelly said problems with the initial rollout on Jan. 27 should be blamed on him, but he said the policy is carefully thought out and is meant to give the country a chance to figure out how it can scrutinize the records of visitors from seven majority-Muslim countries.

“I’m at a total loss to understand how we can vet people from various countries when in at least four of those countries we don’t even have an embassy,” Mr. Kelly told the House Homeland Security Committee. “I think the pause made an awful lot of sense.”



Across the country in the 9th U.S. Circuit Court of Appeals, which covers the West Coast, the Justice Department said federal courts shouldn’t second-guess those kinds of security decisions.

“This is a traditional national security judgment that is assigned to the political branches,” August E. Flentje, a special counsel at the department, told the appeals court.

The government is trying to get the court to reinstate the extreme vetting policy, which was halted Friday by federal District Judge James L. Robart.

The three-judge appeals panel seemed nonplussed by the Trump attorneys’ arguments. At least two of them questioned what evidence Mr. Trump had in mind when he concluded that the seven countries needed extra scrutiny before the U.S. would accept their visitors.

Mr. Trump’s policy halts visitors from Iran, Iraq, Syria, Somalia, Sudan, Libya and Yemen for 90 days and halts the American refugee program for 120 days. Both delays are meant to give the government a chance to improve its screening, Mr. Trump said.

But Washington and Minnesota sued, arguing that Mr. Trump was unconstitutionally targeting Muslims and needed to be stopped before he was allowed to “throw this country back into chaos.”

“It has always been the judicial branch’s role to say what the law is and to serve as a check on abuses by the executive branch. That judicial role has never been more important in recent memory than it is today,” said Noah G. Purcell, solicitor general for Washington.

The court didn’t give an indication of when it might rule. Without intervention, a briefing schedule for a continuation of arguments before the District Court shows that the restraining order would remain in effect through at least Feb. 17.

The judges Tuesday prodded the administration over what was in Mr. Trump’s mind when he issued the order.

Judge Michelle T. Friedland demanded to know the evidence the president was using to determine that the refugee program and the seven targeted countries posed specific threats. When the Justice Department said it hadn’t had a chance to put that evidence in the record, Judge Friedland wondered why the government was trying to speed the case through.

She also came to the rescue of Mr. Purcell when the solicitor general was struggling to justify his claim that the executive order was aimed at Muslims.

“You’ve actually supported these allegations with exhibits, haven’t you?” Judge Friedland prompted him.

The judges vigorously prodded the Justice Department to say whether an outright Muslim ban would be legal.

“Could the president simply say in an order, ‘We’re not going to let any Muslims in?’” asked Judge William C. Canby Jr.

“That’s not what the order does here,” Mr. Flentje said.

Mr. Purcell, the attorney challenging the policy, also acknowledged under questioning that the Trump policy was not a “complete ban on Muslims entering the country.”

But the solicitor general said he didn’t have to prove that the order harms only Muslims or every Muslim.

“We just need to prove that it was motivated in part by a desire to harm Muslims,” said Mr. Purcell said, citing public statements made by Mr. Trump and his top advisers.

He said Mr. Trump’s own words from the campaign, when he first called for a temporary ban on Muslims, should be taken into account when deciding whether the policy was illegal.

The Justice Department countered that the judges should evaluate Mr. Trump’s order based on its text, not newspaper quotes from the campaign. But Judge Richard R. Clifton said the president’s words were “potential evidence.”

Sensing the argument was not going his way, Mr. Flentje pleaded with the court to at least narrow Judge Robart’s broad ruling.

He asked that it not apply to those who have never been to the U.S. and who he said had no claim to a right to be admitted. He also suggested that the court limit its ruling to the two states that sued.

“I would strongly encourage the court, even if it has concerns with the government’s position, that it immediately stay the portion of the injunction that applies outside the boundaries of the U.S. and extends beyond people who are in the U.S. or have been in the U.S.,” Mr. Flentje said.

Mr. Purcell, though, said those limits would leave some people still facing an illegal prohibition.

Earlier in the day, Mr. Trump said he was willing to take the battle to the Supreme Court if need be and called his order “common sense.”

“They want to take a lot of our powers away. Some people with the wrong intentions,” Mr. Trump said at a White House meeting with sheriffs from across the country.

The rollout of the order was rocky, with green card holders and translators who aided the U.S. war effort in Iraq being detained. The administration scrambled to carve out exemptions for both of those categories, saying they hadn’t intended to snag them.

Mr. Kelly took the blame for the early problems.

“This is all on me,” he said as he testified to Congress on Tuesday, saying he should have delayed the order for a day or two to give everyone a chance to get ready. He also said a Friday afternoon deployment may not have been advised, in hindsight.

Mr. Kelly told the House Homeland Security Committee that “it’s entirely possible” that potential terrorists have been gaining entry to the U.S. since the courts halted the policy.

He defended the need for a pause in admissions, saying the top people at Homeland Security and at the State Department don’t have confidence that they are able to properly screen visitors from troubled countries.

Mr. Trump’s executive order has been a magnet for lawsuits. The American Civil Liberties Union added to the mounting legal challenges by lodging a case in Maryland on Tuesday.

While some of the lawsuits have tackled duplicitous issues, Lee Gelernt, an ACLU attorney who had argued a challenge in Brooklyn, New York, said the cases have created a patchwork of protections for those who would be affected by the ban.

“Things are moving so quickly no one can be sure which case is going forward,” he said.

If the 9th Circuit panel moved to narrow the scope of the restraining order, Mr. Gelernt said, the Brooklyn decision would protect foreign travelers who had already reached U.S. soil with their visas while the new Maryland case looks to expand protections to those abroad.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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