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Updated 12:33 AM  |  February 8, 2017
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What if the order said, ‘No Muslims’?

As the hearing approached its end, Friedland asked Flentje directly: “What if the order said, ‘No Muslims’?”

Flentje, the government’s lawyer, said that would likely be unconstitutional but “that’s not the order we have here.”

When Clifton asked, Flentje acknowledged that it had been reported during the campaign that Trump had proposed such a ban and that some of his advisers had talked about how to enact such a restriction while staying within the Constitution.

But Flentje said it would be “extraordinary” to second-guess the president’s power over immigration and national security “based on some newspaper articles.”  Again in response to Clifton, he said he did not question the accuracy of the reports.

Canby was concerned that the administration had changed its reading of the order to say that it did not apply to green-card holders, when initially officials had said that it did. There were questions about who interprets the order and who exactly does it restrict.

That might mean sending it back to the district judge for more discovery, which is what Purcell was seeking.

It is hard to predict panel outcomes based on questions that sometimes are meant to provoke. But if we were to rank the three judges by their skepticism about Trump’s order, it would be Friedland as the most skeptical, followed by Canby and then Clifton.

Friedland, who presided over the arguments, said the panel would rule “as soon as possible.”

Judge Clifton sharply questions the claim that the order is a “Muslim ban”

Washington’s lawyer ran into trouble with Judge Clifton after arguing that the order violated the Establishment Clause, which prohibits the government from favoring one religion over another.

Clifton said the ban covered only seven countries, which accounted for a small minority of all Muslims. He pointed out again that the Obama administration and Congress had previously designated the seven countries covered by Trump’s ban as a worrisome source of terrorism and subject to visa restrictions.

The judges pressed the state’s attorney to explain, given that, why Trump’s order amounts to a Muslim ban.

“Do you assert that that decision by the previous administration and congress as religiously motivated?” asked Clifton.

Purcell said no. But he said that “the president called for a complete ban on Muslims.”

“Is this that ban?” Clifton asked.

“No, we’re not saying this is a complete ban on Muslims entering the country,” Purcell said.

Purcell said it was discriminatory and that the state’s allegations at this point of the legal procedures must be given weight.

“We’re supposed to take your word for it?” Clifton asked incredulously.

Friedland threw Purcell a lifeline, noting that he had submitted exhibits to back up some of his allegations.

Is it a Muslim ban? Let’s look at some numbers.

According to statistics compiled by the Pew Research Center in 2010, only about 12 percent of the world’s Muslims lived in the seven countries banned under Trump’s executive order: Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen. But the vast majority of the people living in those countries — 97 percent — are Muslim.

State’s lawyer accuses Trump administration of flip-flopping on the details of the ban

Noah G. Purcell, the Solicitor General for the Washington state, says the federal government has flip-flopped on how it defines the executive order and who it includes.

The Department of Homeland Security initially interpreted Trump’s ban to include lawful permanent residents or green card holders, as well as those in possession of valid U.S. visas, blocking tens of thousands of people from entering the country. In the week and a half since signing the order, the Trump administration has walked back those aspects of the ban.

But Purcell argued that if reinstated, the ban could still potentially apply to that vast group of people unless explicitly altered. “Until they change the order to make that crystal clear, they can’t just say, ‘Well now that doesn’t’ apply to them so don’t worry about it,” he said.

State lawyer arguing with the judges over whether they should even be hearing the appeal

The lawyer for Washington state, Solicitor General Noah Purcell, is getting caught in a long debate with the judges about whether it is proper for the appeals court even to review the temporary restraining order issued by U.S. District Court Judge Robart.

The judges seem impatient with that argument.

Purcell says there could be full briefing before Robart, who first heard the legal challenge, by end of next week, and the case would then be clearer.

Hearing on Trump travel ban: Updates from the federal appeals court

The U.S. Court of Appeals for the 9th Circuit is hearing arguments starting at 6 p.m. Eastern on whether to restore President Trump’s controversial immigration order.

The hearing, which will be conducted by telephone, is to review an order by a lower court judge to put Trump’s directive on hold.  The judges said each side would have 30 minutes to present their arguments beginning at 6 p.m. Eastern. It is unclear how soon a ruling could follow. The hearing will be live-streamed, the clerk of court said.

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