Federal appeals court judges in Virginia gave a mostly skeptical hearing Monday to a lawyer for President Trump as he attempted to defend the legality of a foreign travel ban affecting six mostly Muslim nations.
The 13 judges of the U.S. 4th Circuit Court of Appeals, 10 of whom are Democratic appointees, must decide whether Trump’s revised executive order is a valid effort to protect the nation’s security or an unconstitutional scheme to keep out Muslims. An earlier, more sweeping travel ban was also blocked by federal courts.
The judges pointed to Trump’s statements during the campaign when he spoke of what he saw as the danger posed by Muslims and the need to keep out Muslim immigrants, refugees and visitors.
Trump later shifted his focus away from religion to nationality, but administration officials frequently portrayed the executive order as a fulfillment of his campaign pledge.
“Even after the second order, there was sort of a wink and nod,” said Judge James A. Wynn Jr., an appointee of President Obama. “Are his statements irrelevant?”
Judge Robert Bruce King noted that Trump’s campaign website still featured his 2015 statement calling for the nationwide Muslim ban. That statement was removed Monday shortly after reporters asked White House Press Secretary Sean Spicer about it during a news briefing.
At issue is whether the court should look solely at the language of the order, or whether judges should consider the motivations behind the president’s actions, particularly if the intent violates constitutional prohibitions against favoring one religion over another.
A lawyer for the American Civil Liberties Union ran into equally sharp questions from several judges who said they did not see why the courts should second-guess the president’s judgment involving a matter of national security. Trump has argued the temporary ban is necessary to protect Americans from possible terrorist attacks.
Judge Paul Niemeyer, an appointee of President George H.W. Bush, said several of the targeted nations are “state sponsors of terrorism. People coming from there are high risk. And you are saying there’s something wrong with that?”
He said judges should not be deciding whether screening at the border is justified. “I don’t know where this stops,” he said.
The ACLU’s attorney, Omar Jadwat, insisted the Trump’s own words had shown that the travel ban was mostly a gesture toward filling a campaign promise. He said national security experts had said there was no need for shutting off new arrivals from the six countries.
His legal argument rested on the 1st Amendment’s ban on laws “respecting an establishment of religion.”
“The Establishment Clause prohibits denigrating and targeting religion,” he said.
Jadwat’s best moment came when he asked the judges to consider the possibility of a hypothetical anti-Semitic president who says, “I don’t like Jews. I don’t want them in the country.” Then, after being elected, he issues an executive order banning new arrivals from Israel because that nation has experienced terrorism. Judges should have no trouble concluding such an order would be illegitimate and unconstitutional, he said.
Meanwhile, Jeffrey Wall, acting U.S. solicitor general, argued that Supreme Court’s precedents give the chief executive broad power to restrict foreigners from entering the country. He repeatedly cited a 1972 decision in which the justices upheld an order denying a visa to a Belgian communist who was due to speak at Stanford University. Professors had sued citing the 1st Amendment and the freedom of speech, but the high court said it would not second-guess the government’s reason for denying the visa.
So long as the president “puts forth a reason that is on its face legitimate,” Wall argued, the order restricting new arrivals should be upheld. In this instance, the president’s reason involved terrorism and national security. Trump and his advisors said they worried the governments of these countries — including Libya, Somalia and Yemen — could not provide “reliable information to screen” people who wanted to come to the United States.
The full 4th Circuit was hearing the Trump administration’s appeal of a ruling by a U.S. district judge in Maryland who blocked a scaled-down travel ban from taking effect. The original order was blocked by the 9th Circuit on Feb. 9, dealing the Trump White House a major legal defeat in its third week on the job.
On May 15, the 9th Circuit Court, sitting in Seattle, will hear a similar appeal of the second order, which was also blocked by a federal judge in Hawaii.
If the administration loses in either of the appeals courts, its lawyers are likely to appeal to the Supreme Court.
While the judges argued back and forth over whether Trump’s order was based on national security or religious discrimination, several asked about procedure issues.
It is possible the court could toss out all or part of the case because only one plaintiff appears to have standing. To have a valid case, the judges said someone in the United States has to show he or she is facing harm because a relative abroad has been denied a visa as a result of the order.
Wall also urged the judges to narrow the Maryland district judge’s ruling. It should apply only to the single plaintiff, he said, not the entire nation.
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