A three-judge panel of the 9th Circuit Court of Appeals in Seattle today pressed attorneys for the Trump administration and the state of Hawaii on whether President Donald Trump’s statements as a candidate and as president render his revised travel ban unconstitutional and whether Trump has disavowed his call for a “Muslim ban.”
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Acting Solicitor General Jeffrey B. Wall asked the appeals court to reverse U.S. District Court Judge Derrick K. Watson’s March 16 order that blocked Trump’s second travel ban just hours before it was to go into effect — a ruling Trump called an “unprecedented judicial overreach” that made America “look weak.”
The revised travel ban, which 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, and suspend the admission of refugees for 120 days.
“How is a court to know if, in fact, it’s a Muslim ban in the guise of national security justification?” Judge Ronald M. Gould asked Wall. “That’s the nub of the case,” Wall responded, having argued that “the order on its face has nothing to do with religion, and the operation doesn’t distinguish on the basis of religion.”
But Neal Katyal — the attorney for plaintiffs the state of Hawaii and Ismail Elshikh, a Hawaii-based imam — said that “context matters,” recounting Trump’s most controversial statements, “starting in December 2015, when [Trump] called for a, quote, ‘total and complete shutdown of Muslims entering the United States.’”
“A few months later, ‘I think Islam hates us. We can’t allow people coming into this country who have this hate of the United States.’ Then a few months later, [Hillary Clinton] ‘would admit tens of thousands of refugees from the Mideast who would try to take over our children and convince them how wonderful Islam is,’” said Katyal.
After Wall argued that only post-election “official capacity statements” should be looked at, Judge Michael Daly Hawkins questioned whether Trump has ever disavowed his campaign statements about Muslims. “Has he ever stood up and said, ‘I said before I wanted to ban all members of the Islamic faith from entering the United States of America. I was wrong’?” Hawkins probed.
Wall said that, yes, Trump has disavowed certain statements. “Over time, the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them,” said Wall, adding that “what he wanted to do was increase the vetting procedures.”
Katyal disputed Wall’s answer, arguing that “when he issued both executive orders, he left on his [campaign] website that very statement about the complete and total shutdown of Muslims, a statement that happened to disappear moments before the 4th Circuit argument last week.”
Katyal drew comparisons to President George W. Bush, who “said after Sept. 11, the face of terror is not the true faith of Islam. That’s not what Islam is about. Islam is peace.” With Trump “we get, quote, ‘Islam hates us,’” Katyal said.
The judges acknowledged the importance of deferring to the president on matters of foreign affairs. Judge Michael Daly Hawkins reminded Katyal of a filing he wrote in favor of Barack Obama’s immigration plan in which Katyal argued that the president has power to “balance a broad range” of foreign policy and other considerations.
“It’s not clear [Wall] responded as effectively as he might have to the panel’s invite,” said Peter Margulies, a national security law professor at Roger Williams University School of Law. “Wall seemed invested in a sweeping view of executive power that the panel might find was a bridge too far.”
“In general, I’d say both advocates were excellent,” said Kate Shaw, an associate professor at Cardozo School of Law in New York, and an ABC News contributor. “I’d give the edge to Hawaii coming out of the argument, but the judges asked tough questions of both sides, so this felt like a hard one to call.”
The 4th Circuit Court of Appeals heard similar arguments last week in a separate case challenging the revised travel ban. Because federal courts in Hawaii and Maryland have imposed nationwide preliminary injunctions blocking portions of the travel ban, the administration will have to win in both appellate courts for the entire travel ban to move forward. Eventually, these cases will likely be consolidated and decided by the U.S. Supreme Court.