Arguments before the 9th Circuit Court of Appeal raised important questions about Presidential power and the safety of our nation. At issue is whether the President seeks to discriminate against Muslims in violation of the U.S. Constitution.

Special Counsel August Flentje argued on behalf of Donald Trump and others that the President’s Executive Order does not target Muslims, but instead addresses legitimate safety concerns. The document itself targets citizens from the 7 countries: Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. Flentje argued there is no valid evidence to show that Trump acted in bad faith in singling out these countries for discriminatory religious purposes. He cites President Trump’s declaration that the U.S. cannot properly vet foreigners from these countries for immigration purposes because the countries themselves are either in disarray or do not cooperate with the U.S.

Noah Purcell, Solicitor General for Washington State, responded that it is acceptable to look outside the “four corners” of the Executive Order to determine whether the President acted in bad faith by targeting Muslims. There is information in the media to suggest the President wants to target Muslims for discriminatory purposes. If so, then the Order should be stricken. Judge Richard Clifton pressed attorney Purcell whether Washington State could show that the Executive Order in fact illegally targeted Muslims in violation of the U.S. Constitution’s Establishment Clause. Attorney Purcell responded that they have not yet conducted discovery in the case to make a more complete argument, but that there is plenty of evidence in public by President Trump to show his ulterior motive was to single out Muslims.

Trump’s Orders Do Not Solve the Terrorism Problem

Judge Clifton responded that the Order only affects about 15 % of all Muslims worldwide. Attorney Noah indicated that any illegal motive is sufficient to strike the statute, regardless of its scope. Judge Clifton raised the issue that there really are concerns that radical Muslims are in these 7 countries and can target the U.S. Judge Michelle Friedland asked what foreigners from those countries have caused problems in the U.S.? Attorney Flentje responded that the threats were outside the U.S., and that was enough to justify the Order.

There were other legal issues that are interesting mostly just for lawyers, but the issues concerning the President’s intent in issuing the Executive Order was a hot topic.

Separately, there are questions as to the scope of the Executive Order, and what groups it affects. Though Attorney Flentje insisted that green card holders are not included in the Order, such a declaration comes only after the confusion in the wake of the Order. Attorney Purcell argued the President is not at liberty to reinterpret the order as he deems fit. The Order must be stricken and rewritten. Otherwise, visa holders and green card holders are left at the mercy of policies that are shifting and unpredictable.

My impression is that the Executive Order does not solve the problem of terrorism on U.S. soil. Post 9/11, radical Muslim groups do not infiltrate the U.S. by traveling here. ISIS uses the internet to radicalize U.S. citizens without the need to travel. They recruit and activate lone wolves remotely. The goal should be to monitor the internet and try to intervene there. Exclusion of foreigners from the U.S. does not help the overarching goal of stopping terrorism.