Trump's travel ban back before 9th Circuit this morning
- Author: Zachary Reyes May 24, 2017,
May 24, 2017, 10:09
A USA appeals court on Monday questioned Justice Department attorneys over President Donald Trump's temporary travel ban on people entering the United States from six Muslim-majority countries, the second such court to review Trump's directive over the past week.
Earlier this year, a different panel of judges affirmed a lower court injunction against the president's initial travel ban order, which he revoked in issuing his second version.
They asked an administration lawyer about what one judge called Trump's "profound" campaign statements calling for a ban on Muslims entering the United States.
In that hearing, the judges questioned Acting Solicitor General Jeffrey Wall about whether they should take into account Trump's previous campaign statements about banning Muslims from the United States as they consider his executive order, which essentially would do just that. "But how is the court to know if in fact it's a Muslim ban in the guise of a national security justification?" The three judge panel in that case upheld the decision by Seattle U.S. District Judge James Robart.
Attorney Neal Katyal, arguing on behalf of the plaintiffs, suggested "this is a repeated pattern of the president". They also say the president's ban is well within his authority to protect USA borders.
The hearing was held in Seattle' s William K. Nakamura Courthouse, named for a U.S. Medal of Honor victor born in Seattle to Japanese immigrant parents who were interned.
"This order is aimed at aliens overseas, who themselves don't have constitutional rights", Wall said in a hearing broadcast live on C-Span and other news stations. And even today, White House Press Secretary Sean Spicer was asked if the president would repudiate his campaign rhetoric now.
"He could not actually point to any disavowal", Katyal said, "because the truth is, there is no such statement".
The court is weighing Trump's appeal of a March decision that put a nationwide hold on his executive order barring US entry by, or visas for, nationals of Iran, Syria, Sudan, Libya, Somalia and Yemen for 90 days and blocking all refugees for 120 days.
"No one has ever tried to set aside a law that's neutral on its face and neutral in its operation on the basis of campaign statements made by a private citizen running for office", he contended.
This is the second time the 9th Circuit has been tasked with deciding the immediate fate of the President's travel ban.
Monday's arguments marked the second time Trump's efforts to restrict immigration from certain Muslim-majority nations have reached the San Francisco-based 9th Circuit.
Three judges appointed by former President Bill Clinton - Michael Hawkins, Ronald Gould and Richard Paez - are due to hear arguments over whether to uphold a Hawaii judge's decision to block the ban in March.
The Justice Department stands firm on its position that the Trump travel ban aims exclusively to protect national security, not to discriminate against Muslims.
Hawaii's case, similar to Washington's, argues constitutional violations of the First Amendment's Establishment Clause that says the federal government can not prefer one religion over another.
"A review of the historical background here makes plain why the Government wishes to focus on the executive order's text, rather than its context", Watson wrote.
The comments came after a three-judge panel from the 9th U.S. Circuit Court of Appeals in Seattle heard arguments Monday in a lawsuit filed by Hawaii over the ban.
But unlike the due process concerns driving the analysis in the last round, this time the appeals court must squarely wrestle with Trump's past statements about Muslims as it decides whether the lower court in Hawaii correctly blocked the revised ban. He later said he believed "Islam hates us" and that the USA couldn't "allow people coming into this country who have this hatred of the United States".
The Justice Department separately appealed another federal judge's decision to halt the 90-day travel ban to the 4th Circuit Court of Appeals in Richmond, Va.
Paez, echoing questions from the Fourth Circuit last week, had also asked if Trump's comments meant he could never adopt an executive order along the lines of the one he signed.
Wall argued that the Supreme Court's 1972 ruling in Kleindienst v. Mandel determined the president has the authority to deny the entry of noncitizens based on "facially legitimate and bona fide reasons".