The oral argument of the Trump administration’s motion for a stay pending appeal of Judge Robart’s order restraining the Trump administration from enforcing the executive order calling a brief timeout on the admission of refugees from seven designated countries (a/k/a “travel ban”) in the Ninth Circuit just concluded. The Ninth Circuit made the oral argument accessible by live stream.
To no one’s surprise, the oral argument did not go well for the Trump administration. All three judges were all over Department of Justice special counsel August Flentje. Flentje himself turned in a pitiful performance. The Ninth Circuit has promised to post a recording of the oral argument here as soon as it is able to do so.
It’s been a long time since I worried about appellate jurisdiction, but I doubt that the Ninth Circuit has jurisdiction to entertain the appeal that the Department of Justice has filed. This question was addressed only at the outset of the argument presented by the State of Washington Solicitor General on behalf of Washington and Minnesota. In my opinion any outcome remotely favorable to the Trump administration is extremely unlikely at this point, though (again, in my opinion) it has a strong case on the merits of the issues.