How the Oral Arguments Over the Muslim Ban Shook Out in the 9th Circuit
I was not able to listen to the entire oral arguments in front of the 9th Circuit Court of Appeals between the state of Washington and the U.S. DOJ about whether to lift the Muslim ban, but I have read the transcripts and I can parse out most of the arguments. Based on the chatter I have seen online, on what Laurence Tribe has tweeted, and what the site’s resident practicing lawyer Seth Freilich thinks, and what the NYTimes legal correspondents believe, it sounds like it might end up being a 2-1 decision against Donald Trump’s Muslim ban, breaking down along the party lines of the judges (two were appointed by Democrats, and one is a Bush appointee).
However, even Judge Clifton — the Bush appointee — offered some tough questions, though other questions suggested that he believed that immigrants from the seven majority-Muslim countries could pose a threat and that it’s not directed at specifically at Muslims (although Clifton does name-check Giulani’s statements to the effect that it is a Muslim ban).
“I have trouble understanding why we are supposed to infer religious animus when in fact the vast majority of Muslims would not be affected as residents of those seven countries and where the connection to terrorism for those seven countries is kind of hard to deny.”
The other two judges, Canby and Friedland, seemed much more sympathetic to the State of Washington and suggested there was plenty of evidence indicating it was a ban on Muslims, even suggesting that it’s unusual to have this much evidence suggesting as much before the case has even gone to discovery (there’s the Giuliani statement, and ample statements from Trump himself suggesting the ban was intended to apply against only Muslims).
Questioning from judges is not always a reliable indication of how the judges will rule, however, and anything could happen. The Department of Justice did not have a great showing, however, conceding early on that the executive order was overly broad and needs to be trimmed back so that it doesn’t affect lawful permanent residents.
"When you have 30 minutes to argue and spend 15 minutes stuttering, that's not a good day at the courthouse," attorney says of DOJ lawyer. pic.twitter.com/ebSm72Z9KG— CBS News (@CBSNews) February 8, 2017
Assuming it is a 2-1 decision against Trump, however, it’s likely to be appealed to the Supreme Court where there’s a decent possibility it could break down along idealogical lines, meaning it would be a 4-4 tie. The liberal justices would assert that it’s a ban on religion, while the conservative justices are likely to give wide latitude to the executive branch on issues of immigration. Should the court deadlock at 4-4, the 9th Circuit’s ruling would stand, meaning that the stay against the ban would continue to remain in place until a full hearing on the merits restarts the process all over again (that case, too, would likely go to the Supreme Court, and a final ruling on whether the Muslim ban is allowed or not may not arrive for months and may ultimately depend on whether Trump’s SCOTUS nominee, Judge Gorsuch, has been confirmed yet).
tl;dr: Nothing has been decided yet, but it looks good for those who oppose the executive order, at least for now.