Federal judges on Monday peppered a lawyer for President Donald Trump with questions about whether the administration’s travel ban discriminates against Muslims and honed in on the president’s campaign statements, the second time in a week the rhetoric has faced judicial scrutiny.
Acting Solicitor General Jeffrey Wall, who is defending the travel ban, told a three-judge panel of the 9th US Circuit Court of Appeals that “over time, the president clarified that what he was talking about was Islamic terrorist groups and the countries that sponsor or shelter them.” He argued that the executive order halting travel from six majority Muslim nations doesn’t say anything about religion, and neither the state of Hawaii nor an imam from that state who wants his mother-in-law to visit has standing to sue.
“This order is aimed at aliens abroad, who themselves don’t have constitutional rights,” Wall said in a hearing broadcast live on C-Span and other news stations.
Neal Katyal, who represented Hawaii, scoffed at that argument and said Trump had repeatedly spoke of a Muslim ban during the presidential campaign and after.
“This is a repeated pattern of the president,” Katyal said.
The 9th Circuit panel was hearing arguments over Hawaii’s lawsuit challenging the travel ban, which would suspend the nation’s refugee program and temporarily bar new visas for citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen. The judges will decide whether to uphold a Hawaii judge’s decision in March that blocked the ban.
Dozens of advocates for refugees and immigrants rallied outside the federal courthouse in Seattle, some carrying “No Ban, No Wall” signs.
Last week, judges on the 4th Circuit Court of Appeals heard arguments over whether to affirm a Maryland judge’s decision putting the ban on ice. They also questioned whether they could consider Trump’s campaign statements, with one judge asking if there was anything other than “willful blindness” that would prevent them from doing so.
On Monday, Judge Richard Paez questioned Katyal about Trumps statements, calling them “profound.” But the judge wondered whether Trump is forever forbidden from adopting an executive order along the lines of his travel ban.
Katyal said no, and suggested the president could work with Congress on legitimate measures.
Monday’s arguments mark the second time Trump’s efforts to restrict immigration from certain Muslim-majority nations have reached the San Francisco-based 9th Circuit.
After Trump issued his initial travel ban on a Friday in late January, bringing chaos and protests to airports around the country, a Seattle judge blocked its enforcement nationwide — a decision that was unanimously upheld by a three-judge 9th Circuit panel.
The president then rewrote his executive order, rather than appeal to the U.S. Supreme Court, and in March, U.S. District Judge Derrick Watson in Honolulu blocked the new version from taking effect, citing what he called “significant and unrebutted evidence of religious animus” in Trump’s campaign statements.
“Again, in this court, the President claims a nearly limitless power to make immigration policy that is all but immune from judicial review,” Hawaii Attorney General Douglas Chin wrote to the 9th Circuit. “Again, he must be checked.”
The administration’s lawyers are seeking to persuade the judges that the lower court’s decision is “fundamentally wrong,” and that the president’s order falls squarely within his duty to secure the nation’s borders. The order as written is silent on religion, and neither Hawaii nor its co-plaintiff, the imam of the Muslim Association of Hawaii, has standing to sue, they say — arguments that were rejected in the lower court.
The travel ban cases are expected to reach the Supreme Court, but that would likely be cemented if the 4th and 9th Circuits reach differing conclusions about its legality. Because of how the courts chose to proceed, a full slate of 13 judges heard the 4th Circuit arguments last week, while just three, all appointees of President Bill Clinton, will sit in Seattle.
For that reason — with the possibility for myriad concurring or dissenting opinions — it could take the 4th Circuit longer to rule, noted Carl Tobias, a law professor at University of Richmond law school in Virginia.