A federal appeals court panel of three Democratic appointees grappled with questions Monday over how to determine whether President Trump’s revised travel ban was motivated by religious prejudice or national security.
The judges of the U.S. 9th Circuit Court of Appeals, who listened to arguments for more than an hour in a Seattle courtroom, did not clearly indicate how they were leaning and asked pointed questions of both sides.
But Judge Ronald M. Gould wanted to know whether there were grounds to continue blocking Trump’s order nationally even if the panel found no constitutional violation of religious freedom guarantees.
And Judge Michael Daly Hawkins questioned if the lower court order blocking Trump’s action may have been overly broad.
Trump’s order, directed at six predominantly Muslim countries, did not mention religion though Trump called for a “Muslim ban” when he was running for president.
“How is a court to know if it is in fact a Muslim ban in the guise of national security justifications?” asked Gould, who, like the other two judges on the panel, was appointed by former President Clinton.
Hawkins asked if Trump had ever admitted he was wrong about calling for a Muslim ban or stated that the current order was motivated only by concern for national security.
“Has he ever said anything approaching that?” Hawkins asked skeptically.
Acting U.S. Solicitor Gen. Jeffrey B. Wall said Trump has made many statements about pursuing efforts to combat terrorists.
Lawyers for the Trump administration have argued the court must uphold a presidential order involving national security if it is neutrally worded and there is no clear sign of discriminatory intent.
But Judge Richard Paez noted the order that led to the internment of Japanese Americans during World War II was neutrally worded. “There was no reference to Japanese in that executive order,” he said. “And look what happened.”
Wall appeared taken aback by the comparison and said he would not have been standing in the courtroom if that was the kind of order before the court.
The hearing was held in Seattle’ s William K. Nakamura Courthouse, named for a U.S. Medal of Honor winner born in Seattle to Japanese immigrant parents who were interned. Dozens of protesters gathered peacefully on the courthouse steps, chanting and waving signs such as “No Wall No Ban” and “Muslim Ban is UnAmerican.”
Neal Katyal, a Washington-based lawyer representing the challengers, repeatedly reminded the court of Trump’s critical remarks about Muslims.
But Paez noted that Trump made his calls for a Muslim ban “in the midst of a highly contentious campaign.”
“Don’t we need to look at it from that standpoint?” Paez asked.
Katyal replied that some of Trump’s comments came even after his election and that a written campaign statement calling for a Muslim ban had remained on the Trump site until the administration removed it on the eve of another federal circuit court hearing earlier this month.
“Does that mean the president is forever barred from issuing an executive order along those lines?” Paez asked.
Katyal said Trump could formally disavow his earlier comments and say Islam was a peaceful religion, as did former President George W. Bush.
“Instead, we get, ‘I think Islam hates us,’’’ Katyal said, quoting the president.
The court is hearing the case on an expedited schedule but did not indicate when it will rule.
The court is weighing Trump’s appeal of a March decision that put a nationwide hold on his executive order barring U.S. entry by, or visas for, nationals of Iran, Syria, Sudan, Libya, Somalia and Yemen for 90 days and blocking all refugees for 120 days.
Hawaii-based U.S. District Judge Derrick K. Watson issued a preliminary injunction after concluding there was ample evidence to show that anti-Muslim sentiment motivated Trump’s action.
Watson relied on statements Trump and his advisors made about his proposed “Muslim ban” during his campaign and after his election. The judge called the evidence of animus “significant and unrebutted.”
The 4th Circuit Court of Appeals in Virginia heard arguments this month in a similar challenge of Trump’s travel ban. The U.S. Supreme Court is expected to eventually take up the issue.
Gould, 70, based in Seattle, is a moderate. Hawkins, 72, based in Phoenix, is considered moderate to liberal. Paez, 70, who serves in Pasadena, is viewed as the most liberal of the three.
The judges were selected from a computer-generated random list of all panels sitting during the month of May, the earliest the case could be heard.
Some legal experts said it was hard to conclude from the hearing how the judges would rule.
"It looked like Paez was looking to make a broader decision [against the travel ban] and maybe Hawkins and Gould were looking into a narrower decision,” said Loyola Law School professor Jessica Levinson. “But it's difficult to predict."
Margo Schlanger, a University of Michigan law professor, called the questions about the internment of Japanese Americans "very telling."
"The panel seemed clearly to want to avoid a legal standard under which the Japanese internment camps would be constitutional, and that's good news for Hawaii and the plaintiffs," said Schlanger, who worked on civil rights in the Department of Homeland Security under the Obama administration.
University of Richmond law professor Carl Tobias said he believed the panel was leaning toward a decision that would continue to block Trump’s order, “although that is difficult to ascertain with certainty.”
Douglas Kmiec, a professor of constitutional law at Pepperdine University, said he disagreed with the travel order but saw the law and Monday's arguments as being on Trump's side.
"For Trump to lose on the law, the court would have to ignore the role of the president in foreign affairs," said Kmiec, who served in the Department of Justice in the Reagan and George W. Bush administrations.
The state of Hawaii and Ismail Elshikh, the imam of the Muslim Assn. of Hawaii, challenged Trump’s order, which was a revision of an earlier, broader ban that the 9th Circuit blocked on due process grounds.
The revised order targets six instead of seven countries (Iraq was included in the original), makes no mention of religion, exempts green-card holders and allows for exceptions in certain cases.
Hawaii argued that the new order would still hurt the fight against terrorism and create difficulties in the recruitment of university students and faculty.
The administration has argued that presidents have wide authority over immigration matters and courts are forbidden from second-guessing the executive branch on matters of national security.
Trump’s order is simply intended to keep Americans safe while the administration studies the adequacy of security measures, Department of Justice lawyers have said.
Special correspondent Anderson reported from Seattle and Times staff writers Dolan and Kaleem from Orinda and Los Angeles, respectively.
3:15 p.m.: This article has been updated with more court arguments, analysis, scene outside courthouse.
12:25 p.m.: This article has been updated with court arguments.
This article was originally posted at 3 a.m.