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Trump Travel Ban Hearing in Federal Appeals Court in Seattle

People protest outside as the 9th U.S. Circuit Court of Appeals prepares to hear arguments on U.S. President Donald Trump's revised travel ban in Seattle, Wash. on May 15.

Photographer: Jason Redmond/AFP via Getty Images

Monday May 15, 2017
The Trump administration is returning to court today to seek reinstatement of the president's revised March 6 executive order aimed at temporarily halting travel to the U.S. from six Muslim-majority countries. A federal appeals court will hear arguments in Seattle over whether a Hawaii judge properly blocked the ban two months ago. Follow TOPLive for full news coverage and analysis from the proceedings beginning at 9:30 a.m. PT (12:30 p.m. ET).
Photographer: Dania Maxwell/Bloomberg
Welcome to the William Kenzo Nakamura Courthouse in Seattle, where a three-judge panel of the Ninth Circuit Court of Appeals will hear President Donald Trump's motion to institute enforcement of his revised travel ban. I'm Kartikay Mehrota, a legal reporter at Bloomberg News, and along with my colleague Erik Larson we'll cover today's proceedings in the State of Hawaii v. Trump.

Here's our preview of the hearing:
Before we get to the proceedings, here's a very brief note on today's courthouse: William K. Nakamura was the son of Japanese immigrants and a resident of Seattle. He served the U.S. Army in World War II and was killed in Italy in 1944. On June 21, 2000, he posthumously received the Medal of Honor.
Photographer: Carol M. Highsmith/Buyenlarge/Getty Images
Onto the proceedings: On the Ninth Circuit bench today are three of President Bill Clinton's appointees: Michael Daly Hawkins, Ronald Gould and Richard Paez. 

They have served a combined 58 years on the Ninth Circuit. Among their key rulings: Striking down California's gay marriage ban (Hawkins); expansion of Title IX (Gould); decriminalized failure to have immigration papers (Paez).
This is the second time a three-judge panel from the Ninth Circuit Court of Appeals is considering Trump's travel plan. In February, a different panel of judges from the same court ruled against the president’s first executive order, saying that the government had failed to make its case that a temporary freeze on the travel ban should be lifted. The judges also called into question presidential power to limit immigration the way Trump is trying to do.
Twenty-four days after the appeals court denied the president's request to reinstitute the original travel ban, Trump signed a second edict entitled ``Executive Order Protecting The Nation From Foreign Terrorist Entry Into the United States.''
The revised policy was said to be tailored to the Ninth Circuit's ruling. While it didn't create panic at American airports like its predecessor, litigation challenging the constitutionality of the new order successfully barred its implementation before it could be enforced. One of those cases was filed by the State of Hawaii, the case the appeals court will hear today.
Here's a timeline of events:
  • Jan 27: President Trump signs the first "Executive Order: Protecting The Nation From Foreign Terrorist Entry Into the United States" -- chaos at U.S. airports immediately follows with immigrants, legal permanent residents and asylum seekers unsure if they'll be welcomed into the country.
  • Feb 3: A Washington state court temporarily blocks nationwide enforcement of the travel ban. Enforcement stops. Airports gradually normalize.
  • Feb. 10: Ninth Circuit Court of Appeals unanimously refuses to reinstate the travel ban. Ruling ultimately kills the original order.
  • March 6: President Trump signs revised "Executive Order Protecting The Nation From Foreign Terrorist Entry Into the United States."
  • March 15 & 29: Hawaii judge blocks revised travel ban, then reinforces ruling with injunction.
  • May 15: Ninth Circuit hears Trump's motion to reinstate the second travel ban.
Why Hawaii?
The state's attorney general, Doug Chin, had asked a Seattle judge for permission to participate in the February case that killed the original travel ban. The request to join Washington and Minnesota in court was denied before the final ruling. Once the president unveiled his revised order, Hawaii was the first to challenge.
Hawaii federal judge Derrick Watson ruled that although the president's revised order had indeed been stripped of all religious references, he could not ignore Trump's campaign rhetoric, including multiple promises to enforce a Muslim ban.

“The court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has,” Watson said in his ruling.
He determined that Trump's revised order was motivated by discriminatory intent, a violation of the First Amendment of the Constitution which protections rights to religious freedom.
Hawaii's not the only one fighting Trump's order. An immigrant rights group sued the president in Maryland court on similar grounds. A federal judge barred enforcement of a section of the travel ban leading to a government appeal in the Fourth Circuit. The 13-judge panel at the federal appeals court in Richmond, Virginia, heard arguments on May 8, but has yet to issue a ruling.
Protesters and police have started to line the street outside the courthouse. There aren't more than 20 protesters now, but with a wagon full of signs at the ready it seems organizers are expecting numbers to grow in a flurry.
We have two immigration experts watching the hearing remotely who will share their thoughts throughout the proceedings: 

Dina Haynes is a law professor and Director of Human Rights and Immigration Law Protection at New England Law in Boston.

Mark Krikorian is executive director of the Center for Immigration Studies, a Washington-based think tank that supports Trump’s immigration policies.
Dr. Haynes on expected arguments for both sides:

For Hawaii: The two religion clauses of the 1st amendment, along with arguments borrowed from equal protection doctrine around animus and when the government is motivated by animus. As well as statutory and separation of powers arguments (the Immigration and Nationality Act is clear that national origin discrimination is undesirable and Congress would have to rewrite to alter that)

"I would be surprised if the 9th didn’t find for Hawaii, but I think this case is headed to SCOTUS."

For the government: standing and the president's plenary power.
Arguing for the State of Hawaii will be former acting Solicitor General under the Obama Administration Neal Katyal. For the Justice Department, Jeffrey Bryan Wall. Wall represented the president on May 8 in similar proceedings before the Fourth Circuit.
A week ago, the Fourth Circuit Court of Appeals in Richmond, Virginia, heard arguments in a related suit filed by the American Civil Liberties Union. A panel of 13 federal judges peppered lawyers for the government and the ACLU for more than two hours before ending the hearing without a ruling.
In the Fourth Circuit hearing, U.S. Circuit Court Judge Dennis Shedd injected a moment of humor into the proceedings by questioning the extent to which Trump’s words impact the case -- the same issue at the heart of the Ninth Circuit suit.

"What if he says he’s sorry every day for a year?" Shedd asked the ACLU’s lawyer, to laughter from the courtroom.

“I think it’s possible that saying sorry is not enough -- that’s true in a lot of circumstances, your Honor," the ACLU's lawyer, Omar Jadwat, replied.
In the Fourth Circuit hearing a week ago, Wall said the court's decision "will long transcend this debate and this order and this constitutional moment." Responding to questions about Trump's comments about Muslims, Wall said, "There are different ways to read those statements," adding that "candidates talk about things on the campaign trail all the time."
Trump has repeatedly had problems with contradicting or undermining his administration's official stories on various topics with his own public statements. Perhaps the latest example was Trump's explanation for firing former FBI Direct James Comey, with the officials saying the dismissal was due to a Justice Department recommendation, and Trump saying later in an interview that he planned to fire Comey all along.
To say the commander in-chief and his cabinet acted pre-textually, plaintiffs haven't put the record together, argues Wall. The Justice Department is arguing the district court applied the wrong standard in Hawaii.
Outside the court room, Mark Krikorian says the two key issues today are who has standing to sue and whether, in effect, the First Amendment applies to all foreigners abroad.
On standing, the Hawaii judge said a citizen could sue because he was `deeply saddened' and stigmatized by the message conveyed by the travel-pause EOs. That's laughably indirect, if such injury even exists at all. And Hawaii has no standing because the ruling doesn't affect the conduct of people in Hawaii specifically.

Dina Haynes, a law professor and Director of Human Rights and Immigration Law Protection at New England Law in Boston, says the reason the equal protection doctrine is important is that it allows the court to look outside the “four corners” of the revised document to see the discriminatory intent/``animus.”
Haynes says the government will always argue the plaintiffs have no standing, but it's much harder to win that argument before the Ninth Circuit Court of Appeals than before the Fourth Circuit.
Wall says that unlike U.S. citizens, aliens denied visas abroad do not have constitutional rights and therefore do not have standing to challenge the executive order. "The plaintiffs will try to get around that by saying this sends a message to all Muslims in America," said Wall, the government's lawyer.
The Hawaii imam who is the plaintiff at the center of the case is likely to secure a visa for his Syrian mother-in-law, undermining his claim in the litigation, Wall says. Syria is one of six countries impacted by the revised executive order.
Wall tells the court that even if the government were forced to issue visas for travel to the U.S., the government may still deny the travelers entry into the country once they have traveled here. "We don't think that system would make a lot of sense," Wall said. One of the judges then compared such a scenario to Tom Hanks's character being trapped indefinitely at an airport in the film The Terminal.
Haynes says the government appears much better prepared for today's hearing than for the first round before the Ninth Circuit.
``The first hearing was embarrassing for the government.''
Wall interpreted Hawaii's argument to mean that even if the intelligence community received information that an unkown Libyan national, for example, would be arriving soon in the U.S. for nefarious purposes, the U.S. would have to let all Libyans into the country anyway because barring them temporarily would be unconstitutional.