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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.”

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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