Trump confident travel ban is lawful
- Author: Zachary Reyes May 25, 2017,
May 25, 2017, 20:40
"In closing, both lawyers say the case has big implications for future POTUS decisions - but disagree on what those are", reports NPR's Joel Rose, who was in the courtroom.
Wall argued that courts are only supposed to look at the executive order on its face and not second-guess the president's motivations. It appeared on Trump's campaign website in December of 2015, where it stayed until last week, when it was deleted shortly after press secretary Sean Spicer was questioned about it.
A three-judge panel in Seattle heard arguments over U.S. District Judge Derrick Watson's March order that temporarily bars enforcement of two aspects of the directive - one that suspends the refugee resettlement program and another that blocks travel from six countries with high instances of terror.
In February, the Ninth Circuit refused to reinstate Trump's first travel ban after it was blocked by a federal district court judge in Washington.
Acting U.S. solicitor general Jeffrey Wall, arguing on behalf of the Trump administration, maintained that the president acted within his rights and that he should not be beholden to "campaign trail statements" that he made as "a private citizen".
Various lower courts, however, have ruled that the ban was created to discriminate against Muslims, citing Trump's divisive comments from the stump as evidence.
Katyal said he stands by those arguments, but that doesn't mean the president's authority is unbounded.
"Well, whatever the number of nationals who try to travel to the country and can't otherwise obtain waivers, we don't know yet, obviously, because we haven't been able to implement the order", Wall said.
One of the few things everyone could agree on: this is an unprecedented case.
"When I read Mandel, it's clearly dealing with a specific application of standards to a specific visa denial, and that's not what we have here at all", Paez told Wall.
But such a finding, Wall said, would be "a remarkable holding" that will "require the strongest, clearest affirmative showing" that the revised order is a pretext for religious discrimination.
Appearing somewhat unsettled by the question, Wall strenuously insisted that the two were nowhere almost alike.
He said Congress had set rules on vetting foreigners before they enter the United States and Trump could not claim sweeping powers and take a "magic eraser" to long-standing policies.
Katyal responded that is "the million-dollar question", and said Hawaii is not impugning what is in Trump's head - only asking the judges to decide how a viewer would view whether the ban violates the religious protections in the First Amendment of the Constitution.
Judge Ronald Gould says each side has been allotted 30 minutes but will be granted more if necessary, given the significance of the case.
Judge Richard Paez asked Wall what separates Trump's executive order from the World War II-era mass imprisonment of Japanese-Americans, which was also initiated by an executive order from President Roosevelt and justified on national security grounds. The president of the US has broad powers to make such changes in the interest of national security.
Wall also argued that court should not presume that the president's comments or intentions show that his order was crafted in "bad faith". After clerking for U.S. Supreme Court Judge Potter Stewart from 1974 to 1975, Gould joined the prominent law firm Perkins Coie, where he remained until his appointment to the bench.
"No president has done this", Katyal added.
Katyal pointed to a campaign news release that asserted that Trump is "calling for a total and complete shutdown of Muslims entering the United States".
Because the Ninth Circuit heard the case before a three-judge panel, and not the full membership of the court as the Fourth Circuit Court had done, it seems likely that the Fourth Circuit case might move more quickly to the Supreme Court. A three-judge panel of the 9th U.S. Circuit Court of Ap. "The issue is too important for the Supreme Court to pass up". The court heard arguments for two hours last week, but no word yet on when it might rule.