The Trump administration faced tough questioning from a panel of the 9th U.S. Circuit Court of Appeals for the second time in four months as it defended its revised executive order on immigration.
In an hour-long hearing Monday in Seattle, Trump’s past statements took the center stage once again, as three judges — all appointees of former President Bill Clinton — repeatedly pressed acting U.S. Solicitor General Jeffrey Wall on whether the travel ban is really the “Muslim ban” that the president pushed during the campaign.
Judge Ronald Gould noted, “The executive order sets out national security justifications. But how is a court to know whether in fact it’s a ‘Muslim ban’ in the guise of national security justification?”
Wall urged Gould to ignore campaign statements and focus instead on the wording of the revised order. “The order on its face doesn’t have anything to do with religion. And its operation doesn’t have anything to do with religion,” he said.
Monday’s hearing came exactly two months after a federal judge in Honolulu blocked key parts of the travel ban — one provision that suspends refugee resettlements, as well as sections that temporarily halt the issuance of new visas to citizens of the Muslim-majority countries Iran, Libya, Somalia, Sudan, Syria and Yemen.
Drawing on past statements by Trump and his aides, U.S. District Court Judge Derrick Watson ruled that the revised order amounts to religious discrimination — a step toward the “total and complete shutdown of Muslims entering the United States” that Trump promised on the campaign trail.
But Wall argued that the judges shouldn’t be conducting a “wide ranging inquiry into subjective motivation” of Trump, pointing out that a U.S. Supreme Court precedent instructs them not to second-guess the executive branch’s “facially legitimate and bona fide” immigration decisions.
Still, Wall acknowledged that the judges could take into account the context surrounding the travel ban if they find that Trump is acting on “bad faith.”
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.
“I just don’t think the plaintiffs have put together the kind of record,” Wall said.
Judge Richard Paez appeared skeptical, asking how Wall’s legal analysis squares with Korematsu v. United States — referring to the case in which the Supreme Court upheld President Franklin Roosevelt’s executive order that led to the internment of Japanese-Americans during World War II.
“Would the Korematsu executive order pass muster under your argument?” Paez asked. “There was no reference to the Japanese in that executive order, but look what happened.”
“This case is not Korematsu,” Wall said. “If it were, I would not be standing here, and the United States would not be defending it.”
But Judge Michael Daly Hawkins asked Wall whether Trump had even bothered to disavow his inflammatory rhetoric against Muslims.
Wall responded that Trump had. “Over time,” he said, “the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them.”
Neal Katyal, a lead attorney for Hawaii, pointed out that Wall could only cite an evolution of Trump’s rhetoric, rather than any explicit renunciation of his calls for a “Muslim ban.”
“He could not actually point to any disavowal,” Katyal said, “because the truth is, there is no such statement.”
Katyal, who served as acting solicitor general under former President Barack Obama, also argued that the judges have to perform no “psychoanalysis” of Trump to see that “this is a repeated pattern of the president.”
The judges, Katyal said, only need to ask a simple question: “Is this executive order, viewed from the standpoint of an objective observer, an establishment of a disfavored religion — Islam?” Katyal argued that the answer is a resounding yes.
In response, Judge Richard Paez asked: “Does that mean the president is forever barred from issuing an executive order along these lines?”
Katyal responded that Trump could remedy his “taint” by taking a number of actions, including working with Congress to enact new measures.
“He can do a lot of things,” Katyal said. “I’m not trying to micromanage the president, but he could say, like President (George W.) Bush did right after the Sept. 11 (attacks): ‘The face of terror is not the true faith of Islam. That’s not what Islam is about. Islam is peace.'”
“Instead, we get, ‘Islam hates us. I think Islam hates us,'” Katyal said.
Siding with Hawaii, he said, means maintaining the status quo that “existed for decades,” including all presidential powers and “every decision every president has made in our lifetime.”
Ruling otherwise, on the other hand, will mean, “you defer to the president in a way history teaches us is very dangerous. You open the door to so much,” Katyal said. “Our constitution and laws are better than this.”
It’s unclear when the judges will issue a ruling. Even if they side with the Trump administration, the travel ban will not automatically go into effect.
In a parallel case, the 4th U.S. Circuit Court of Appeals is weighing whether to uphold an injunction issued in Maryland. It’s also possible that other judges could step in to block the revised order. A judge in Washington, D.C., for instance, indicated last week that she was ready to block the travel ban but delayed her decision pending rulings in the appeals courts.