Ninth Circuit panel hears arguments on travel ban

IMPACT – HIGH

A three-judge panel for the Ninth Circuit court of appeals heard arguments Tuesday on the Justice Department’s request to reinstate President Donald Trump’s executive order blocking entry to the United States to nationals of seven Muslim-majority countries.

The hearing followed a district court’s ruling Friday to place the executive order on hold pending further litigation.

August Flentje, who argued on behalf of the government, said the executive order “struck a balance” in attempting to allow foreign nationals to come to the U.S. while protecting the country from threats. He said the district court’s order “upset the balance,” overriding Trump’s assessment on the level of risk posed by nationals of the seven countries—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.

Noah Purcell, who argued on behalf of the states of Washington and Minnesota, which initiated the legal challenge, countered that it has “always been the judiciary branch’s role” to “serve as a check on abuses by the executive branch” of government.

“That judicial role has never been more important in recent memory than it is today,” he said. “But the president is asking this court to abdicate that role here to reinstate the executive order without meaningful judicial review and to throw this country back into chaos.”

The judges on the panel were Judge Michelle Friedland, Judge Richard Clifton and Judge William Canby, Jr. The judges peppered the attorneys with questions about what evidence the government had that nationals of the seven countries pose a threat to the U.S., whether the order was motivated by anti-Muslim sentiment and the proper scope of the relief for which the states have asked, among other issues.

Friedland closed the hearing by saying the judges appreciated “the importance and the time-sensitive” nature of the case and would endeavor to issue an opinion “as soon as possible.”

BAL Analysis: The Ninth Circuit has not yet ruled on the Justice Department’s request to reinstate Trump’s travel ban. For the time being, foreign nationals should be able to enter the U.S. under the rules that were in place before the executive order was signed. Employers should note, however, that a ruling from the Ninth Circuit could be issued at any point. Employers with personnel inside the U.S. who would be subject to the travel ban should advise affected employees against travel outside the U.S. at this point. BAL is closely monitoring developments and will update clients on any changes.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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