For the second time in as many weeks, a federal appeals court pummeled the Trump administration with questions over its controversial executive order calling for a travel ban on citizens from six predominantly Muslim nations and the suspension of the refugee resettlement program.
And the U.S. Court of Appeals for the 9th Circuit, which already prevented an earlier version of the executive order from being enforced, seemed to once again harbor doubts about it, despite Trump’s attempt in March to water it down and insulate it from legal challenges.
“How is a court to know if in fact it’s a Muslim ban in the guise of a national security justification?” asked U.S. Circuit Judge Ronald Gould, who presided over the Monday hearing, broadcast live from a federal courthouse in Seattle on the court’s website and C-SPAN.
Gould’s inquiry must have stung. Time and again, the Trump administration has resisted the characterization of the travel restrictions as a ban on Muslims — even though Trump, while campaigning for office, promised a “total and complete shutdown” on Muslims entering the United States. Until last week, that pledge was still on Trump’s campaign website.
In response to the rulings against the executive orders, Trump has threatened to break up the sprawling 9th Circuit into smaller appeal courts with sway over fewer states.
Acting Solicitor General Jeffrey Wall, who represented the federal government at Monday’s hearing, told the 9th Circuit that the Supreme Court has made it clear that all the executive branch needs to show is a “legitimate” and “bona fide” purpose when deciding whom to exclude from the country.
“The benefit of that standard ... it doesn’t call on courts to make these sorts of determinations — the second-guessing of national security determinations that they’re sort of ill-equipped to do,” Wall said.
But the state of Hawaii, which in March won a national injunction that put a freeze on the travel ban, has contended that the normal deference that judges ought to give presidents isn’t justified in this case — in large part because Trump himself exhibited animus toward Muslims while he was seeking the presidency.
“Has the president ever disavowed his campaign statements?” asked U.S. Senior Circuit Judge Michael Hawkins, echoing questions by an appeals court in Richmond, Virginia, last week.
“Has he ever stood up and said, ‘I’ve said before I wanted to ban all members of the Islamic faith. ... I was wrong. I’ve consulted with lawyers. I’m now addressing it simply to security needs’? Has he ever said anything approaching that?” Hawkins asked.
Has the president ever disavowed his campaign statements? U.S. Senior Circuit Judge Michael Hawkins
Whether the president intended to target members of a particular religion matters because a key argument by Hawaii — and other plaintiffs suing over the travel ban across the country — is that the executive order amounts to a violation of the establishment clause of the Constitution, which prohibits favoring or disfavoring members of a specific faith.
Wall insisted before the 9th Circuit that there’s nothing religious about Trump’s executive order and that, in any event, the order was a “policy judgment” that he exercised as president relying on broad authority given to him by Congress. If the travel ban is to be upheld, Wall suggested, it should be because presidents are owed a “presumption of regularity.”
But U.S. Circuit Judge Richard Paez suggested that the Trump administration was defending the same rationale the U.S. government used during the imprisonment of Japanese-Americans at the height of World War II. In a decision considered one of the worst in American history, the Supreme Court affirmed that executive order signed by President Franklin D. Roosevelt.
Wall seemed taken back by the comparison.
“This case is not Korematsu, and if it were, I wouldn’t be standing here and the United States would not be defending it,” he said, referring to the 1944 ruling that upheld the legality of the Japanese camps.
In a legal twist, the lawyer for Hawaii, Neal Katyal, was acting solicitor general in the Obama administration when his office formally confessed error in 2011 for the role lawyers for the federal government played in defending the World War II camps.
When asked why the 9th Circuit shouldn’t be deferential to the office of the president of the United States, Katyal noted that was the “million-dollar question” in the travel ban cases — and that it all boils down to what an “objective observer” would say about Trump’s statements about Muslims.
In Katyal’s view, there’s simply no precedent to support Trump’s travel ban because “presidents don’t run into establishment clause problems” with their public comments. The case is so unusual, Katyal added, that ruling against the president in this case wouldn’t hamstring future presidents’ national security judgment.
“If you rule for us, you leave intact the president’s powers, including every decision every president has made in our lifetimes, and you preserve a status quo that has existed for decades,” Katyal said. “If you rule for him, you defer to the president in a way that history teaches is very dangerous. You’d open the door to so much.”
But Wall, the Trump administration lawyer, warned the 9th Circuit that a ruling against the government could transcend the Trump era, which he called “this constitutional moment.”
“I know they disagree with this president and many of his policy judgments,” Wall said, pointing to the lawyers for Hawaii. “But none of that converts this into a constitutional crisis.”
The 9th Circuit “ought to leave this debate where it belongs: in the political arena,” Wall added.
The court is expected to rule in the case in the coming days or weeks, and whichever side loses is sure to ask the Supreme Court to intervene.