STEVE INSKEEP, HOST:
Years ago, I was driving a car while listening to the radio, voices talking in the Supreme Court, which allowed an audio feed of the arguments about the 2000 election, Bush v. Gore.
RACHEL MARTIN, HOST:
And yesterday, many Americans had a similar experience. An audio feed allowed the country to hear arguments before an appeals court over President Trump's executive order on immigration.
INSKEEP: To review here, the president imposed a temporary ban on travel to the United States for all refugees plus people from seven mostly Muslim countries.
MARTIN: The order partly collapsed amid protests and administrative chaos.
INSKEEP: And then on Friday, a federal judge blocked the rest of it. The appeals court is now considering whether to keep it blocked for a while as arguments continue. NPR's Joel Rose is with us.
Hi, Joel.
JOEL ROSE, BYLINE: Hi, Steve.
INSKEEP: What's the essential question before the appeals court?
ROSE: Well, each side has its own theory of this case. The government says this is about national security and about the president's power on matters of immigration while the plaintiffs, the states of Washington and Minnesota, which are challenging the executive order, say it's about the people and the businesses and the institutions that are harmed by the executive order's travel ban.
INSKEEP: And so the judges were testing that in the audio that we could all hear last night. Let's play a little bit of this. We're going to hear Judges William Canby and Richard Clifton. And they're sparring here with the government's lawyer, I believe, August Flentje.
(SOUNDBITE OF ARCHIVED RECORDING)
WILLIAM CANBY: Could the president simply say in the order, we're not going to let any Muslims in?
AUGUST FLENTJE: That's not what the order does here.
CANBY: I know, I know.
FLENTJE: Sorry, your honor.
CANBY: Could he do that? Would anybody be able to challenge that?
FLENTJE: That's not what the order does here.
CANBY: I know.
FLENTJE: I do want to get to one key point.
RICHARD CLIFTON: Well, we'd like to get to an answer to that question.
INSKEEP: That's the judge speaking up to the judges - get an answer to that question. Does the government say that the president could just ban Muslims?
ROSE: Not exactly, Steve. The government's attorney said, after questioning, that a Muslim who is a U.S. citizen might be able to challenge a hypothetical Muslim ban. But they say that's not the case here. The judges were asking about some of the big-picture questions, the extent of presidential power. But this hearing technically was about a question that's fairly narrow - should the 9th Circuit Court overturn the lower court's restraining order?
INSKEEP: But I guess the reason this is important, whether the government has the power to just ban Muslims, because one of the state's arguments is that even though the president says it's not a Muslim ban, he originally called for a Muslim ban. His supporters said he asked for a Muslim ban and that this was an effort to have a legal Muslim ban.
ROSE: Well, these are the questions that they're working out in this hearing. I mean, the Justice Department's argument is that the president has broad legal authority on immigration and national security. And here's their lawyer, August Flentje, making that case during the hearing.
(SOUNDBITE OF ARCHIVED RECORDING)
FLENTJE: The president determined that there was a real risk, and that's understandable. The president comes into office with an obligation to protect the national security of our country.
ROSE: One of the judges, Michelle Friedland, followed up on that. She asked whether the government has any evidence to demonstrate that this immediate travel ban is necessary. And Flentje, the Justice Department lawyer, said the government has not had time to present that evidence yet because this case is moving so quickly. So at least one judge seemed pretty skeptical about Flentje's justification for the travel ban.
INSKEEP: Also, they're asking if this is a reasonable security measure. That's the question by the judges. What are the states saying, the states that filed this suit?
ROSE: Well, their lawyer, Noah Purcell, argued that many Washington state residents have been harmed by the ban, that families have been separated and businesses and universities have been hurt as well. And Purcell argues that the court does have an important role to play here.
(SOUNDBITE OF ARCHIVED RECORDING)
NOAH PURCELL: 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.
ROSE: So the states are arguing that the executive order is unconstitutional because it is intended to discriminate against Muslims. And they make that argument based on public statements, they say, that the president and his advisers have already made.
INSKEEP: Right.
ROSE: But those - Purcell got some tough questions from the judges as well. One of the judges on the panel, Richard Clifton, pointed out that there are many Muslims in the world who are not affected by this executive order and that Congress and the Obama administration had singled out these very same seven countries for extra security measures in the past. So Purcell acknowledged that the president could have made this order legally, but Purcell argues that this order is not legal precisely because the president and his advisers intended to favor some groups over others.
INSKEEP: The president's campaign statements, statements by Rudolph Giuliani on television about this become central to the challenge.
So what's next?
ROSE: So the 9th Circuit has promised to rule quickly, probably by the end of this week. And either side could appeal the case to the Supreme Court. And keep in mind, there are other cases. The ACLU filed a new lawsuit in Maryland on behalf of plaintiffs there just yesterday.
INSKEEP: Dramatic news, and we'll continue following it.
Joel, thanks very much.
ROSE: You're welcome, Steve.
INSKEEP: That's NPR's Joel Rose. Transcript provided by NPR, Copyright NPR.
