Trump's Words at Heart of Travel Ban Argument in Virginia

  • Even if Trump wins, the directive is blocked by another court
  • Trump argues the ban is needed to improve security in U.S.

For more than two hours on Monday, a panel of 13 federal judges peppered lawyers for the U.S. and a civil rights group with questions about presidential power, religious bias and the threat of terrorism as it tried to determine whether to let stand President Donald Trump’s revised travel ban on citizens of six mostly Muslim countries.

The decision by the federal appeals court in Richmond, Virginia, is likely to turn on whether Trump’s statements during and after the campaign can be used as evidence that the ban is meant to discriminate against Muslims. The court didn’t say when it would rule.

The judges often interrupted one another and engaged in back-and-forth exchanges with the lawyers and among themselves. The debate over the extent of executive power touched upon issues ranging from the Supreme Court’s approval of the internment of Japanese Americans during World War II to a hypothetical scenario in which Israelis were banned from entering the U.S. by a president who had derided Jews during a campaign.

"In determining bad faith, don’t we get to consider what was actually said here and said very explicitly?" U.S. Circuit Court Judge James Wynn asked Jeffrey B. Wall, the attorney for the U.S. "Even after the second order, there was sort of a wink and a nod -- well, you know what I mean."

Legal Issues in the Trump Travel Ban Fight: QuickTake Scorecard

Trump has struggled in court as judges have halted his first travel ban and his attempt to block some federal funding to cities that fail to cooperate with immigration agents. The president revised his original travel ban in March, but its implementation was stopped by judges in Maryland and Hawaii. The Virginia court on Monday was reviewing the Maryland judge’s ruling, while an appeals court in San Francisco is set to hear the government’s appeal of the Hawaii decision next week.

The court’s decision, which may help define the extent of presidential power, "will long transcend this debate and this order and this constitutional moment," Wall told the judges.

Trump’s campaign vow to implement a Muslim ban is at the core of both lawsuits. Wall argued that the validity of Trump’s order should be based on its text alone, while the American Civil Liberties Union says the president’s comments show his animus toward Muslims. The Constitution’s Establishment clause prohibits the government from giving preference to one religion over another.

Willful Blindness

"Is there anything other than willful blindness that will prevent us from getting behind those statements?" U.S. Circuit Court Judge Henry Floyd asked Wall.

Wall said respect for Trump’s authority was one reason, adding that the travel ban "has nothing to do with religion."

"There are different ways to read those statements," Wall said of Trump’s comments on the campaign trail about Muslims. The attorney said the president’s remarks should be viewed by the court in ways that are "not most hostile to the president."

"Candidates talk about things on the campaign trail all the time," Wall said.

U.S. Circuit Court Judge Barbara Keenan questioned why there wasn’t a specific link in the executive order between the people in the affected countries and a national security threat.

She said the order affected 200 million people in the region. "So it seems to me there’s got to be a linkage -- something about those people’s nationality that renders them suspect or renders them dangerous and I don’t see anything in the text that does that.”

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Some of the justices sought to determine whether the ACLU would consider the revised executive order legal if it had been issued by a different president who hadn’t made the same comments about Muslims.

"I gather you would have no problem with that, right?" U.S. Circuit Court Judge Paul Niemeyer asked Omar Jadwat, the lawyer for the ACLU.

"I think in that case it could be constitutional," Jadwat replied.

"Are you agreeing that the order is legitimate on its face?" Keenan said.

"No," Jadwat said. "The order is completely unprecedented in our nation’s history, even with a secular purpose."

If the administration prevails in both the Virginia and San Francisco cases, the U.S. will be free to temporarily halt issuance of visas to people from Iran, Libya, Somalia, Sudan, Syria and Yemen. If Trump loses in either court, the travel order will remain frozen for now, as the parties fight over Trump’s motivation or if the Supreme Court weighs in.

On Monday, 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.

"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," Jadwat replied.

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