Two days after the Supreme Court allowed President Trump to enforce his travel ban, a federal appeals court appeared skeptical that it complied with the law.
During a hearing in Seattle before a three-judge panel of the U.S. 9th Circuit Court of Appeals, a lawyer for the Trump administration argued the revised ban issued in September was based on careful study and tailored toward specific conditions in various countries.
Hashim M. Mooppan, arguing for the Trump administration, noted the ban allows for waivers and must be reviewed every 180 days.
“The restrictions are not one-size-fits-all,” he said during the videotaped hearing, which was streamed live on the 9th Circuit website.
The ban blocks visitors and immigrants from Chad, Iran, Libya, Somalia, Syria, Yemen and North Korea and limits travel for some officials from Venezuela.
The three 9th Circuit judges, who previously struck down an earlier version of the ban, appeared dubious of several of the government’s arguments, including a contention that the court had only limited power to review Trump’s action.
The hearing primarily focused on whether the ban violated a 1965 immigration law that prohibited discrimination based on nationality.
Judge Richard A. Paez said that law appeared to require restrictions on entry to the U.S. to be time-bound, but that Trump’s order was indefinite.
“The proclamation just seems to disregard everything Congress has laid out,” Paez said.
Lawyers representing the challengers said the administration failed to provide an adequate rationale for why the restrictions were needed.
The ban bars more than 150 million people, mostly Muslims, from the U.S., Mitchell Reich, representing Hawaii, told the court.
The 9th Circuit is considering a ruling by a Hawaii judge who blocked nearly the entire ban on the grounds that it “plainly discriminates based on nationality.”
The Honolulu-based judge ruled in a lawsuit filed by the state of Hawaii.
The 9th Circuit panel includes Judges Michael Daly Hawkins and Ronald M. Gould in addition to Paez — all Clinton appointees — and had previously limited the scope of the Hawaii decision.
The panel had decided that the latest version of the ban could be enforced except against visitors who had close personal or professional ties to a person or entity in the U.S.
The Trump administration appealed to the Supreme Court, leading to Monday’s decision allowing full enforcement while the lower courts hear challenges.
The high court’s decision, issued in a brief order with only two dissents, strongly suggested that it believes the current travel ban does not exceed Trump’s powers or amount to unconstitutional religious discrimination against Muslims.
The U.S. 4th Circuit Court of Appeals, based in Richmond, Va., will hear arguments on a different challenge to the ban on Friday.
Both circuit decisions are expected to be appealed to the Supreme Court.
Gould said the 9th Circuit would rule “as soon as practical.”
Judges are randomly selected to sit on cases, but Democratic appointees on the 9th Circuit outnumber Republican-named judges by about 2 to 1.