RICHMOND, Va. — A revised version of President Donald Trump’s beleaguered travel ban on six Muslim-majority nations faced its biggest legal test yet on Monday, as the Department of Justice tried to convince a federal appeals court the restrictions are legal under the Constitution and the executive’s authority to set immigration policy.
The odds are not in the president’s favor, as 10 of the 13 judges who heard from lawyers from the government and the American Civil Liberties Union were appointed to the U.S. Court of Appeals for the 4th Circuit by Democratic presidents ― six of them by former President Barack Obama alone.
Nearly all of them had tough words for the federal government during the two-hour-plus hearing. And in the end, the final ruling may depend on whether a majority buys the Trump administration’s defense that the president’s own anti-Muslim rhetoric during the campaign and after being sworn in shouldn’t determine the order’s legality.
“We don’t get to consider what was said here?” asked U.S. Circuit Judge James Wynn, referring to Trump and his associates’ several statements pre- and post-election about the purpose of the travel ban.
“The president has never repudiated the statements he made on a Muslim ban,” said U.S. Circuit Judge Robert King, who pointed to Trump’s own campaign website, which once called for a “complete shutdown” of Muslims entering the United States, as an indication of the intent behind the travel ban.
(Strangely, that campaign page appears to have been deleted just as the 4th Circuit was hearing oral arguments in the case.)
Jeffrey Wall, the Trump administration’s lawyer, said courts shouldn’t second-guess the president’s “broad authority” to issue the travel ban, which he said was “on its face legitimate” and allowed under immigration law.
“At bottom, that’s a policy judgment for the administration to make,” Wall said of the travel ban, which he defended as a “temporary pause” in the refugee resettlement program and the entry of nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen into the U.S.
“Candidates talk about things on the campaign trail all the time,” Wall added, urging the 4th Circuit not to consider anything Trump may have said prior to taking the oath of office.
The showdown in the 4th Circuit is the latest chapter for one of the administration’s most embarrassing policy rollouts just yet, as federal judges in both Hawaii and Maryland prevented Trump from moving forward with what the ACLU and other immigrants’ rights groups are calling his “Muslim ban” — a naked attempt to stigmatize refugees and travelers identifying with a specific religious faith.
U.S. Circuit Judges Barbara Keenan and Pamela Harris, both appointed by Obama, questioned the federal government’s charge that courts should just limit themselves to the text of the order as written — and not focus on the subjective intentions of a country’s chief executive.
“Do you really mean that we can’t view all the statements” the president made, Keenan asked.
Since the original travel ban was announced in late January, judges across the country have halted its implementation, forcing the administration to go back to the drawing board and issue a new and improved ban in early March.
But even the watered-down version of Trump’s executive order encountered resistance in the courts, and the 4th Circuit — which covers the states of Maryland, North Carolina, South Carolina, Virginia and West Virginia — is likely to also find problems with the anti-Muslim statements and sentiments Trump and his associates have exhibited since the ban was first proposed.
Perhaps the strongest voice on the 4th Circuit bench for the administration was U.S. Circuit Judge Paul Niemeyer. The longtime conservative repeatedly questioned the premise that judges should take on the role of “supervising and assessing” how the political branches — Congress and the president — look out for national security.
“Don’t we have some respect for the first branch and the second branch?” Niemeyer asked. He suggested that if the 4th Circuit were to rule broadly against Trump, there’d be no stopping point for how courts might call into question future political judgments.
“How long does the taint last for this administration?” asked U.S. Circuit Judge Albert Diaz, one of the 4th Circuit’s newer members. He and other judges seemed interested in knowing how Trump could ever issue a national security order targeting Muslim-majority countries, given his already checkered record on statements about Islam.
"The precedent set by this case for this court’s role in reviewing the president’s power at the borders will long transcend this debate and this order and this constitutional moment.” Acting Solicitor General Jeffrey Wall
“What if he said he’s sorry for a year?” U.S. Circuit Judge Dennis Shedd, another conservative, asked toward the end of Monday’s hearing, drawing laughter from the courtroom. Omar Jadwat, the ACLU lawyer who argued against the government, couldn’t bring himself to acknowledge that Trump could one day issue a lawful travel order, free of the issues that have plagued the first two.
Wall, the Department of Justice attorney, said in his closing remarks that the 4th Circuit shouldn’t let the emotional controversy surrounding the travel ban inform its decision-making. If it does, he suggested, future administrations may pay the price.
“The order before this court has been the subject of a heated and passionate political debate,” Wall said. “But the precedent set by this case for this court’s role in reviewing the president’s power at the borders will long transcend this debate and this order and this constitutional moment.”
As timing would have it, just as Wall was making his case for the federal government in court, former acting Attorney General Sally Yates appeared to go against it during a Senate committee hearing in Washington. Without mincing words, she explained why she wasn’t willing to instruct DOJ lawyers to defend the travel ban — a decision that ultimately got her fired.
“I believed that any argument that we would have to make in its defense would not be grounded in the truth, because, to make an argument in its defense, we would have to argue that the executive order had nothing to do with religion, that it was not done with an intent to discriminate against Muslims,” Yates said on Monday.
The 4th Circuit chose C-SPAN to carry live audio of oral arguments of Monday’s hearing. Next week, the cable network will also broadcast a separate hearing from Seattle involving the Hawaii challenge to Trump’s travel order.
This story has been updated to include details from the hearing.