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Three federal appeals court judges heard arguments Tuesday over President Donald Trump's executive order temporarily barring entry to the United States of refugees and those from seven predominantly Muslim nations.
The judges from the 9th U.S. Circuit Court of Appeals in San Francisco did not immediately make a decision in the controversial executive action but a ruling will probably come down this week, the court said.
The Justice Department is seeking to overturn a lower-court judge's temporary restraining order that blocked Trump's order. Critics have called Trump's order a "Muslim ban," a claim the president has denied.
If the appeals court judges agree with the government and grant a stay, the executive order would go back into effect.
The judges were tough on attorneys for the U.S. government as well as Washington state for making claims without having put evidence in the record in the fast-moving case.
Asked about evidence connecting the seven countries to terrorism, August E. Flentje, special counsel to the U.S. assistant attorney general, said: "The strongest point on that is in 2015 and 2016 both Congress and the administration made determinations that these seven countries posed the greatest risk of terrorism."
Judge Richard Clifton countered: "It's not like there haven't been processes in place to take some care with people coming from those countries."
Clifton asked whether there was any "real risk" or whether circumstances had changed such that risks couldn't be met by existing safeguards during a review.
"Well, the president determined that there was a real risk," Flentje replied, adding that Trump's order was a "short halt." The Justice Department also argued that the state of Washington, which sought the suspension of the order, didn't have legal standing to challenge the president's national over national security.
Trump's order restricted travelers carrying visas from Sudan, Libya, Somalia, Syria, Iran, Iraq and Yemen from entering the United States for 90 days. The previous reference to those countries under federal law covered vetting of mostly European travelers who passed through, not banning entry of citizens from the seven countries.
In addition, refugees were barred for 120 days, and all Syrian refugees were barred indefinitely under Trump's order.
Lawyers for Washington argued that the state suffered harm to its economy and public universities because the order jeopardized the contributions of citizens from the affected countries. The lawyers said 7,000 noncitizen immigrants from the seven countries reside in Washington. The lawyers also said the order stranded some university faculty and students who happened to be abroad when it was issued.
State lawyers further argued that the order violated visa holders' rights to due process and alleged that Trump has made it clear that it is designed to favor Christians over Muslims. Minnesota joined Washington's lawsuit.
Clifton said he wasn't entirely persuaded by the argument by Washington state that the executive order amounted to religious discrimination. He said the seven countries appeared to only make up a small percentage of the world's Muslims.
"I have trouble understanding why we're supposed to infer religious animus when, in fact, the vast majority of Muslims would not be affected as residents of those nations — and where the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny," he said.
The judge also noted past presidential orders that treated people differently based on nationality. "We treat people from North Korea differently than we treat people from France," Clifton said.
Washington Solicitor General Noah Purcell argued that past presidential orders were more narrow.
"It was the executive order itself which cause irreparable harm to our state" by stranding public university faculty overseas, disrupting the lives of longtime residents and causing the state to lose tax revenue, Purcell said.
Purcell said that the "chaos" from the order was just starting to subside and that "it's the federal government that's asking the court to upend that status quo again."
Flentje said that while Washington focused on the harms suffered to people in the state, U.S. District Judge James Robart's order blocking the restrictions "goes way beyond that."
Visa holders and refugees rushed to take advantage of the pause. About 60,000 visas that had been canceled were deemed valid after Robart issued his restraining order last week.
Trump has said the executive order is necessary to protect Americans from terrorism. It follows campaign pledges for "extreme vetting" of some of those wishing to enter the United States.
The Trump administration argued Monday that if the appeals court were inclined to rule for the states, it should allow the travel restrictions to be restored but give an exemption to people who were allowed into the country before and now want to return, or to people here on visas now who want to travel and then return.
Critics have noted that although the order cites the Sept. 11 terrorism attacks as a justification, none of the hijackers in the attacks were from the affected countries. Some have called the restrictions un-American.