Federal appeals judges hammered the lawyers on both sides of President Donald Trump’s revamped travel ban order with questions about the limits of presidential power and religious bias in a review of the ban on people coming from six Muslim-majority countries.
During the two hours of arguments Monday before 13 judges of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, the judges seemed to put the President’s own campaign promises of a Muslim ban at the center of the case.
While three of the 13 judges appeared to support the administration’s legal rationale for the ban, as many as five judges appeared to have serious reservations. It will take seven or more votes to form a majority opinion.
On January 27, the President issued an executive order banning people from seven Muslim-dominated countries, Iran, Libya, Somalia, Sudan, Syria, Yemen and Iraq. The 9th U.S. Circuit Court of Appeals blocked enforcement of the ban upholding the ruling of a Seattle judge.
The travel ban was revised to allow previously approved green card holders into the U.S. and dropping Iraq from the list. It was that revised order that was challenged.
The American Civil Liberties Union, (ACLU), sued on behalf of the International Refugee Assistance Project arguing the revised travel ban violates the equal protection clause of the U.S. Constitution. A trial court in Maryland imposed a partial stay of the ban, following by a judge in Hawaii that imposed a nationwide injunction blocking the entire law.
The Maryland case was appealed to the 4th Circuit, which decided to put the case before the entire court, rather than the usual three-judge panel. (The Hawaii ruling is currently on appeal in the 9th Circuit.)
Judge Diana Motz asked government lawyer Jeffrey Wall, “If the president issued a ban against all Muslim’s in these six countries, do you believe that would be constitutional?”
Wall argued the revised travel ban did not target Muslims but blocked all nationals from those six countries. He argued the validity of the order should rest on its text alone. Even if the court gave weight to Trump’s campaign statements, there were significant intervening events. “He was elected President, he pledged to uphold the Constitution, he formed a government and consulted with his administration,” Wall said.
“That does not give him the right to violate the Establishment Clause,” Motz responded.
Judge Robert King asked if the President “has every repudiated his statements. He changed Muslims to a geographic designation He changed nationality to territory. The ban language was still on his webpage today.”
With respect to Trump’s campaign promises of a Muslim ban, Judge Henry Floyd asked, “Is there anything other than willful blindness that will prevent us from looking behind those statements?”
Judge Barbara Keenan said there are 82 million people in these six countries. The law requires the executive order to show some linkage to show they would be a detriment to the U.S. “I don’t see it. It has to find they ‘would be’ a detriment, not that they may be detrimental.”
Finally, Judge James Wynn asked Wall if we have ever seen in our history where the President has said we don’t want Muslims in this country and seven days after taking office it is enacted. Then it is revised but the effect is the same and he makes a statement,”Well, you know what that means.”
“We’re in uncharted territory,” Wynn said.
The ACLU attorney Omar Jadwat said the court must look beyond the plain language to the intent of the Trump order.
Despite his argument, Judges Paul Niemeyer, Dennis Shedd and Steven Agee repeatedly hit him with questions about the exact language of the travel ban, asking for some evidence that it targeted Muslims.
“On its face the order is legitimate,” Niemeyer said.
Throughout the argument the judges interrupted one another with questions, not allowing Wall or Jadwat to answer all the questions they were asked or even finish sentences in some instances.
Case: International Refugee Assistance Project v. Trump, No. 17-1351
Listen to arguments here.