Trump administration attorneys head back to a federal appeals court Monday seeking to reverse a judge’s March order that blocked the president’s second travel ban just hours before it was to go into effect -- a ruling the president called an “unprecedented judicial overreach” that made America “look weak.”
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The revised travel ban that Trump signed on March 6 would block the entry of foreign nationals from six majority Muslim countries for 90 days, with exceptions for permanent U.S. residents and current visa holders. It would also suspend for 120 days the admission of refugees into the U.S.
“We are going to take our case as far as it needs to go, including all the way up to the Supreme Court,” President Trump said at a campaign rally in Nashville, shortly after the decision was issued by a federal judge in Hawaii. “We are going to win. We are going to keep our citizens safe, believe me," Trump said.
The arguments to be heard Monday in Seattle -- before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit –- follow U.S. District Court Judge Derrick K. Watson’s March 16 decision that thwarted implementation of the overhauled version of Trump’s controversial policy, which the administration contends is a vital component of a strategy to prevent potential terrorists from entering the country.
In its challenge to the revised travel ban, the state of Hawaii cites then-candidate Trump’s campaign promise for “a total and complete shutdown of Muslims entering the United States” and other statements from Trump and his surrogates to argue that the new order, despite its modifications, suffers from the same alleged discriminatory defects as the first, which was scrapped and replaced by the administration after it ran into resistance in several federal courts.
“The President and his advisers did little to disguise the Order’s true nature,” attorneys for the state argue in court filings. “[T]he president seeks to enact a thinly veiled Muslim ban, shorn of procedural protections and premised on the belief that those who practice Islam are a danger to our country. The Constitution is not so easily cast aside.”
The administration contends in its appeal that the courts owe substantial deference to the executive branch in matters of immigration and national security, and that Judge Watson and other federal judges err in looking beyond the plain text of the executive order in evaluating its legality and intent.
The order’s “explicit, religion-neutral objective is to address the risk that potential terrorists might exploit possible weaknesses in the Nation’s screening and vetting procedures while the review of those procedures is underway,” administration attorneys argue in filings before the court.
But as was the case last week when the Court of Appeals for the Fourth Circuit heard the administration’s appeal of a Maryland judge’s decision blocking portions of the travel ban – the arguments in Seattle are expected to put a spotlight squarely on statements by Trump that opponents of the ban contend are evidence that the executive order was motivated primarily by President Trump’s alleged animus toward Muslims.
“The critical issue in this case is how much stock courts should put in the president's words,” said Kate Shaw, an associate professor at Cardozo School of Law in New York, and an ABC News contributor.
“This was a major question in the litigation around the first travel ban executive order. So now the court is evaluating the second executive order -- one that has a more developed national-security rationale, and some supporting materials from other executive-branch entities -- but whose operative provisions are quite similar, and against the backdrop of the same statements by the President and his surrogates,” Shaw said.
“There's also a deeper question here,” Shaw said, “about the impact of not only Trump's words about his intent to enact a ‘Muslim ban,’ but also about whether his attacks on courts and general disregard for norms and institutions are causing courts to accord him less deference than they would any other president.”
The Trump administration’s appeal is expected to be argued by Acting Solicitor General Jeffrey Wall. Arguing for the state of Hawaii is Neal Katyal, a Washington, D.C. based attorney with the firm of Hogan Lovells.
The three judge panel consists of Circuit Judges Ronald M. Gould and Richard A. Paez, and Senior Circuit Judge Michael Daly Hawkins. All three were appointed to the Ninth Circuit Court of Appeals by former President Bill Clinton.
“Affiliation of the appointing president is not an airtight indicator in these cases,” said Bo Cooper, an immigration lawyer at Fragomen, Del Rey, Bernsen & Loewy, LLP in Washington, D.C., but it’s “not a good sign from the Trump administration.”
“The bottom line is that the administration needs to win in both the Ninth Circuit and the Fourth Circuit if it wants to implement the Executive Order, as the injunctions are independent of one another,” Cooper said. “Judging by the tone of the questioning earlier this week in the Fourth Circuit and the composition of the Ninth Circuit panel, that may be an uphill climb.”