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a panel of judges in the 9th circuit court of appeals listened to arguments regarding whether president trump's travel ban should remain on hold. usa today network

9th circuit court of appeals

the 9th u.s. circuit court of appeals building in san francisco, where on feb. 7, 2017, three federal judges will hear oral arguments in the challenge to president trump's travel ban.(p o: josh edelson, afp/getty images)

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three federal appeals court judges voiced deep skepticism tuesday about president trump's temporary ban on immigration from seven majority-muslim nations, an indication that they are not inclined to reinstate it.

the u.s. court of appeals for the 9th circuit panel pounced on the justice department lawyer representing the administration for insisting the travel ban was needed despite existing visa rules and restrictions.

the panel – two judges appointed by democratic presidents, one by a republican – expressed some sympathy for the government's fallback position that lawful permanent residents from the seven nations could be excluded from the ban. but the judges questioned whether they or administration officials could rewrite trump's order on the fly.

judge richard clifton, who was named to the bench by president george w. bush, voiced the most support for a potential compromise. the others — judges michelle friedland, named by president barack obama, and william canby, appointed by president jimmy carter — were more harsh in their appraisals of the ban.

the unusual hearing, with a live nationwide audience listening in,   dealt with the most significant test of trump's fledgling administration — one that pits the president's authority to protect the nation against the rights of legal immigrants and refugees. a spokesman for the court said a ruling is expected later this week.

it was convened only days after trump signed the executive order, which places its most extreme restrictions on refugees and immigrants from syria. the order was blocked last week by federal district judge james robart in seattle. he would hear detailed arguments from both sides if the appeals court panel upholds his initial decision and sends the case back. and either side could appeal the panel's ruling to the supreme court.

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august flentje, arguing for the government, said the seven countries selected for the travel ban, which are iran, iraq, libya, somalia, sudan, syria and yemen,  were identified by the obama administration as prone to terror, giving trump the right to ban immigrants temporarily.

“has the government provided any evidence connecting these countries with terrorism?” friedland, the presiding judge, asked.

"i understand the concept of that, but it’s pretty abstract," clifton chimed in. "it’s not like there haven’t been processes in place for dealing with people from those countries."

the judges zeroed in on that point, repeatedly asking for instances in which travelers from the seven countries had entered the u.s. and committed acts of terrorism. flentje said the case was moving very quickly, pleading for more time to bolster the government's arguments at the district court level.

washington state solicitor general noah purcell raised the religious component of trump's ban, arguing that it violated constitutional protections by barring targeting muslims, who make up 97% of the seven nations' populations.

clifton said he saw no evidence that the order was written to target muslims and said the countries represent only about 15% 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," he said.

purcell responded that trump's words on the paign trail, when he called for a temporary ban on muslims entering the country, were all the proof needed to understand the true reason behind the order. "there are statements that we’ve quoted in our complaint that are rather shocking evidence of intent to discriminate against muslims," he said.

to reverse robart's ruling, the circuit court must show that it was decided in error, a difficult standard to meet — or at least that it was, as the government argues, "vastly overbroad."

if the panel keeps trump's order on hold, the last stop could be the supreme court. with trump's nominee to fill the vacant ninth seat, neil gorsuch, just beginning a lengthy confirmation process, the high court could decide not to hear the president's appeal or emerge with a 4-4 tie that would keep the lower court's ruling in place.

legal experts said that sets up a difficult path for trump's department of justice as it tries to overturn the temporary restraining order put in place last friday and restart the immigration ban.

"the history of these challenges to presidential actions on immigration has been a pretty sharp partisan split," said stephen legomsky, professor emeritus at washington university school of law in st. louis and a former chief counsel at u.s. citizenship and immigration services. "i wouldn't be surprised to see the 9th circuit uphold the (temporary restraining order). and in the supreme court, i can easily imagine a 4-4 split."

the partisan makeup of the appeals court, however, is far from a guarantee. kari hong, an istant professor at boston college law school who has argued more than 100 cases at 9th circuit, said the judges who will rule on trump's order are not likely to rule based on party lines.

judge william canby was appointed by carter, but he is a former lieutenant in the air force's jag corps, so he could be swayed by trump's national security arguments. and while judge michelle friedland was appointed by obama, she clerked for supreme court justice sandra day o'connor, who was named to the court by president ronald reagan. hong said that means friedland "studied at the foot of a jurist very concerned about process and procedure."

"i don't think this is a foregone conclusion at all," hong said.

president trump speaks in the roosevelt room of the

president trump speaks in the roosevelt room of the white house on feb. 7, 2017.

 (p o: andrew harrer, pool/getty images)

at issue is trump’s jan. 27 order that banned refugees from entering the u.s. for 120 days and barred immigration from syria indefinitely. trump said the ban was needed to give his intelligence agencies time to implement "extreme vetting" procedures for people coming from those terror-prone countries.

that order unleashed chaos around the world, as foreigners with visas and green cards were detained at u.s. airports and prohibited from boarding u.s.-bound flights. after robart blocked the action pending further legal arguments, the state and homeland security departments reissued more than 60,000 visas that had been revoked.

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andy sun, of springfield, mo, along with other protestors

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thousands of people protest president trump's immigration ban on citizens from seven majority-muslim countries outside the white house in washington, dc on january 29, 2017. on january 28, a federal judge in brooklyn temporary blocked the executive ban, which had stranded as many as 200 inbound foreigners at u.s. ports of entry. 

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people protest president trump's immigration ban on

people protest president trump's immigration ban on citizens from seven majority-muslim countries outside the white house in washington, d.c. 

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demonstrators gather near the white house to protest

demonstrators gather near the white house to protest president trump's travel ban on seven muslim countries on january 29, 2017 in washington. president trump signed the controversial executive order that halted refugees and residents from predominantly muslim countries from entering the united states.  

zach gibson, getty images
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demonstrators gather near the white house to protest

demonstrators gather near the white house to protest president trump's travel ban on seven muslim countries. 

zach gibson, getty images
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people gather in copley square to protest the muslim

people gather in copley square to protest the immigration ban enacted by president trump on january 29, 2017. urday night, two federal judges issued a temporary emergency order halting part of the ban.  

darren mccollester, getty images
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 people gather in copley square to protest the muslim

people gather in copley square to protest the immigration ban enacted by president trump. 

darren mccollester, getty images
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people gather in copley square to protest the muslim

people gather in copley square in boston to protest the immigration ban enacted by president trump.  

darren mccollester, getty images
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people gather in copley square to protest the muslim

people gather in copley square in boston to protest the immigration ban enacted by president trump on january 29, 2017. 

darren mccollester, getty images
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senator liz warren (d-ma) speaks to people gathered

senator liz warren (d-m .) speaks to people gathered in copley square in boston to protest the immigration ban enacted by president trump.  

darren mccollester, getty images
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people attend an afternoon rally in battery park to

people attend an afternoon rally in battery park in new york to protest president trump's immigration policies.  

spencer platt, getty images
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people attend an afternoon rally in battery park to

people attend an afternoon rally in battery park to protest president trump's new immigration policies. 

spencer platt, getty images
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thousands of protesters crowd philadelphia international

thousands of protesters crowd philadelphia international airport sunday to speak out against the president's temporary ban on refugees from seven muslim-majority countries.  

suchat pederson, the news journal via usa today network
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thousands of protesters cheer as a car drives by in

thousands of protesters cheer as a car drives by in support of their protest at philadelphia international airport.  

suchat pederson, the news journal via usa today network
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demonstrators protest against president trump's executive

demonstrators protest against president trump's executive immigration ban at chicago o'hare international airport on january 28, 2017. president donald trump signed the controversial executive order that halted refugees and residents from predominantly muslim countries from entering the united states. 

joshua lott, afp/getty images
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sergio martinez, center, a teacher at sparks elementary

sergio martinez, center, a teacher at sparks elementary school in la puente, calif., joins hundreds of others as california educators voice their opposition to president trump's nomination of betsy devos as secretary of education, at a california teachers ociation meeting in los angeles on jan. 28, 2017.  

reed saxon, ap
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demonstrators gather outside the federal courthouse

demonstrators gather outside the federal courthouse in milwaukee on january 28, 2017, to protest the executive order signed by president trump that bans refugees from seven nations.  

bill glauber, milwaukee journal-sentinel via ap
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people gather outside of the us district court in new

people gather outside of the us district court in new york, where a judge issued an emergency stay for those detained at airports on january 28, 2017. 

andrew gombert, european pressp o agency
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people gather outside of the us district court in new

people gather outside of the u.s. district court in new york, where a judge issued an emergency stay for those detained at airports on january 28, 2017.  

andrew gombert, european pressp o agency
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anti-trump protestors fill the international hall inside

anti-trump protestors fill the international hall inside the philadelphia international airport on january 28, 2017. 

joe lamberti, courier-post via usa today network
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area muslims and local immigration activists participate

area muslims and local immigration activists participate in a prayer and rally against president trump's immigration policies in new york. 

spencer platt, getty images
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isaias juarez with his daughter's anarhu joins a gathering

isaias juarez with his daughter's anarhu joins a gathering in downtown durham, n.c., friday, to show their support for refugees and immigrants and stand against president trump's plan to ban refugees of muslim countries. 

bernard thomas, the herald-sun via ap
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muslims and immigration activists participate in a

muslims and immigration activists participate in a prayer service and rally in new york city. 

spencer platt, getty images
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cousins shabnaj, left, and taslima choudhury, center,

cousins shabnaj, left, and taslima choudhury, center, of queens, new york, pray during jummah, a muslim prayer service, in foley square. the rally and prayer service sponsored by the new york immigration coalition and the inter-faith clergy of new york city was in support of muslims and immigrants. 

mary altaffer, ap
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people participate in a prayer service and rally against

people participate in a prayer service and rally against president trump's immigration policies in new york. 

spencer platt, getty images
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hundreds of people gathered in downtown durham, n.c.,

hundreds of people gathered in downtown durham, n.c., to show their support for refugees and immigrants and stand against president trump's plan to ban refugees of muslim countries. 

bernard thomas, ap
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women listen to a speaker as people rally against president

women listen to a speaker as people rally against president trump's immigration policies in new york. 

spencer platt, getty images
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a view from the downtown rally in durham, n.c., friday,

a view from the downtown rally in durham, n.c., friday, to show their support for refugees and immigrants and stand against president trump's plan to ban refugees of muslim countries. 

bernard thomas, ap
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people gather for an interfaith rally to show support

people gather for an interfaith rally to show support for the muslim and immigrant communities in new york. the rally was organized in response to proposed actions by president trump. 

justin lane, epa
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people gather in durham, n.c., to show their support

people gather in durham, n.c., to show their support for refugees and immigrants. 

bernard thomas, ap
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people listen during an interfaith rally, friday, in

people listen during an interfaith rally in foley square to show support for the muslim and immigrant communities. 

jusin lane, epa
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people rally, friday, to show support for the muslim

people rally to show support for the muslim and immigrant communities in new york. 

justin lane, epa
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