With hundreds of thousands of Americans listening in, Donald Trump administration lawyers tried to convince three skeptical judges on Tuesday about the merits of the US president's travel ban that has plunged his days-old presidency into its first major crisis.
Trump, who called the court proceedings “disgraceful”, is also struggling to get his full Cabinet confirmed by the Senate. Even Republicans voted against one of his nominees, and another one is facing determined opposition from Democrats.
Vice-president Mike Pence used his tie-breaker vote for the first time in a confirmation to clear education secretary Betsy DeVos, and the Senate leadership forced a vote to silence a Democrat opposing Jeff Sessions as attorney general.
“It is a disgrace that my full Cabinet is still not in place, the longest such delay in the history of our country,” Trump tweeted, adding, “Obstruction by Democrats!”
But his attention was soon focussed on the travel ban.
He was among the hundreds and thousands of Americans — 137,000 at its peak — who tuned into a live audio broadcast of the proceedings of a high court considering the government’s appeal against a lower court’s stay on his travel ban order.
“I listened to the lawyers on both sides last night,” Trump told an audience of law enforcers in DC. He said what he heard he found “disgraceful” and that if the judges “wanted to help the court" they would “do what they should be doing”.
That is, they should rule in his favour.
The Trump administration is challenging a stay on his January 29 order banning visa-holders from Iran, Iraq, Syria, Yemen, Libya, Somalia and Sudan from entering the US for 90 days.
A lawyer arguing for the justice department told the court the judiciary cannot, and should not, pre-empt the president’s judgement on the matter of national security, and that the three-member appeals court should vacate the stay.
“This is a traditional national security judgment that is assigned to the political branches and the president and the court’s order immediately altered that,” said the lawyer, August Flentje, referring to the stay by a lower court in Seattle, Washington.
The judges seemed taken aback at times by the lawyers’ assertions. “Are you arguing, then, that the president’s decision in that regard is unreviewable?” judge Michelle T Friedland asked the government lawyer.
The court also grilled Minnesota and Washington state, whose lawsuit led to the Seattle court stay order, on its case for challenging a nationwide order by the president, and how they or the residents of these states were impacted by it.
The court is expected to give its ruling some time this week. If it refuses to lift the stay, the federal government can, and will, go to the Supreme Court.
If the apex court comes out tied 4-4, which is a possibility given the ideological divide — four liberals, three conservatives and one swing vote — the case will go back to James Robart, the Seattle court judge Trump called a “so-called judge”.