The Trump administration headed back to court Monday to defend President Trump’s travel ban.
Three judges on the 9th Circuit Court of Appeals in Seattle heard the government’s claim that a Hawaii district judge was fundamentally wrong in blocking the travel order nationwide.
Trump’s order seeks to temporarily ban nationals from six majority-Muslim countries from entering the U.S., as well as refugees.
Acting Solicitor General Jeffrey Wall argued that both the Constitution and an act of Congress give the president broad authority to prevent aliens abroad from entering the country when he deems it appropriate for the safety of the nation.
The three judges — all appointed by President Bill Clinton — grappled with whether to consider Trump’s statements during the presidential campaign about banning Muslims.
{mosads}“The executive order sets out national security justifications, but how is a court to know if in fact it’s a Muslim ban in the guise of national security justifications?” Judge Ronald Gould asked.
Wall said past precedent does not call on the court to make that sort of determination or second-guess the national security determinations of the president.
Judge Michael Day Hawkins repeated a question a 4th Circuit judge asked last week.
“Has the president ever disavowed his campaign statements? Has he ever stood up and said, ‘I said before I wanted to ban all members of the Islamic faith from entering the United States of America, I was wrong. I’ve consulted with lawyers, I’m now addressing it simply for security needs’?”
Wall claimed Trump has.
“Over time, the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them,” he said. “And over time, he and his advisers clarified that what he was focused on was groups like ISIS and al Qaeda.”
Last week, nine judges on the Richmond, Va.-based 4th Circuit Court of Appeals heard arguments in the government’s appeal of a separate order blocking the ban from a district court judge in Maryland.
Neal Katyal, former acting solicitor general under President Barack Obama, represented Hawaii on Monday. He argued that Trump’s ban constitutes nationality-based discrimination given what Trump said during the campaign.
Though the statements were profound, Judge Richard Paez said, it’s a little concerning that they were made in the midst of a highly contentious campaign.
“Don’t you need to look at it from that perspective as well?” he said.
But Katyal countered that Trump rekindled those statements in actions as president.
“First, when he issued the first executive order, he read the title of the executive order, looked up at the camera and said, ‘We all know what that means,’ ” he said. “If it was clear from the title what it meant, he wouldn’t have had to say it.”
When he issued both executive orders, Katyal noted that his statements about banning Muslims were still on his campaign website.
“You don’t, your honor, need to be Sigmund Freud in order to affirm the district court,” he said. “You simply must ask, as the Supreme Court has told you, what would an objective observer think with these sorts of statements.”
In February, the 9th Circuit refused to reinstate Trump’s first travel ban after it was blocked by a federal district court judge in Washington.
To address the court’s concerns, Trump revised the order and removed Iraq from the list of banned countries, removed an indefinite ban on Syrian refugees and eliminated language that gave preference to religious minorities when the refugee program resumed.
Trump has repeatedly attacked the Ninth Circuit for ruling against his first travel order. Late last month, he said he was looking at ways to break up the court, which has long been a target of conservatives.
In one tweet in April, Trump said the court has a “a terrible record of being overturned (close to 80%). They used to call this ‘judge shopping!’ Messy system.”
– Updated at 3:11 p.m.