WASHINGTON: The US Justice Department has indicated that the Trump administration could opt for a compromise to soften the impact of a travel ban on the citizens of seven Muslim countries and on refugees.

The department’s lawyer August Flentje told an appeals court in San Francisco on Tuesday night that the administration could accept a compromise that would allow the visitors, who had entered the United States before, to re-enter. Similarly, those now living in the United States could be assured of their right to return.

The US Court of Appeals for the Ninth Circuit is hearing the government’s plea for release from a stay order issued by a court in Seattle, which stopped the administration from implementing its travel ban.

On Jan 27, President Donald Trump issued an executive order barring citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the US for 90 days. The order also stopped entry of all refugees for 120 days and indefinitely halted refugees from Syria.

On Friday night, a federal court in Seattle suspended the order while hearing an appeal filed by the states of Washington and Minnesota. The nationwide suspension forced the Department of Homeland Security (DHS) to allow the visitors and refugees affected by the ban to enter the United States.

On Sunday, the administration requested the court of appeals to stay the suspension order but the court refused to do so and instead invited the federal government and the states of Washington and Minnesota to argue their case. The arguments started on Tuesday evening and are expected to continue for a few days.

In the first hearing, one of the judges, Michelle Friedland, asked Mr Flentje if he believed the president’s order was “unreviewable”.

“Yes,” said the lawyer after a brief pause, adding that he did believe a court could not “second guess” the president.

“Could the president simply say in the order, ‘We’re not going to let any Muslims in?’ ” asked Judge William Canby.

Another judge wanted to know what evidence the government had to connect the seven Muslim countries to terrorism. And Judge Richard Clifton asked why the government was placing a blanket ban when it already had a screening system for travellers.

The judges’ comments show that the government’s legal team will face tough questions as the hearing proceeds.

Mr Flentje said the executive order was “well within the president’s power as delegated to him by Congress”, and that President Trump issued the order because he had determined there was a “real risk” in not stopping travellers from the seven countries identified in the order.

Judge Friedland said she was not convinced if an immediate suspension of travel from the seven countries was necessary.

Noah G. Purcell, Washington state’s solicitor general, argued that the executive order was a form of religious discrimination, as it was directed against a particular religious community.

But Judge Clifton reminded him that “concern for terrorism with those connected with radical Islamic sects is kind of hard to deny”.

Mr Flentje said the states of Washington and Minnesota could not challenge the order on religious grounds as they were not the affected parties but the other plaintiffs could.

President Trump has indicated that he is willing to go all the way to the Supreme Court, if the appeals court rules against his order. But doing so may considerably delay its implementation, as the Supreme Court is currently split 4-4 between conservative and progressive judges.

The president may have to wait for the Senate confirmation of his nominee for the ninth judge, Neil Gorsuch, who is a conservative. Democrats have already indicated they may delay his confirmation.

The Washington Post, however, has pointed out that traditionally the Supreme Court favours the presidency.

Published in Dawn February 9th, 2017