Judges prod both sides on U.S. travel ban
9th Circuit weighs presidential order, Muslims as targets
Federal appeals court judges asked pointed questions of both sides during a hearing Monday on whether President Donald Trump’s revised travel ban may be enforced.
During more than an hour of arguments in a Seattle courtroom, a three-judge panel of the U.S. 9th Circuit Court of Appeals appeared skeptical of the contention that the ban was not aimed at Muslims but also expressed concerns about second-guessing a president.
Lawyers for the Trump administration have argued that the court must uphold a presidential order if it is neutrally worded and there is no clear sign of discriminatory intent.
But Judge Richard Paez noted that the order that interned Japanese-Americans during World War II was neutrally worded. “There was no reference to Japanese in that executive order,” he said.
“And look what happened,” added Paez, one of the three President Bill Clinton appointees who will decide the case.
On the other hand, Paez later noted that Trump made his calls for a Muslim ban “in the midst of a highly contentious campaign. Don’t we need to look at it from that standpoint?”
Judge Ronald Gould asked whether the court could continue a hold on the president’s order even if the judges did not believe it amounted to a violation of a constitutional ban on religious discrimination.
“How is a court to know if it is in fact a Muslim ban in the guise of national security justifications?” Gould asked.
Judge Michael Daly Hawkins asked if Trump had ever said he was wrong about calling for a Muslim ban or stated that the current order was motivated only by concern for national security.
“Has he ever said anything approaching that?” Hawkins asked skeptically.
But later, Hawkins asked: “Why shouldn’t we be deferential to the office of the president?”
Gould, 70, based in Seattle, is a moderate. Hawkins, 72, based in Phoenix, is considered moderate to liberal. Paez, 70, who serves in Pasadena, Calif., is viewed as the most liberal of the three.
The judges were selected from a computer-generated random list of all panels sitting during the month of May.
Acting U.S. Solicitor General Jeffrey Wall argued for the Trump administration, and Neal Katyal, a Washington-based lawyer and acting solicitor general under President Barack Obama, represented the challengers.
The court is weighing Trump’s appeal of a March decision that put a nationwide hold on his executive order barring U.S. entry by or visas for nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days and blocking all refugees for 120 days.
Hawaii-based U.S. District Judge Derrick Watson issued a preliminary injunction after concluding there was ample evidence to show that anti-Muslim sentiment motivated Trump’s action.
Watson relied on statements Trump and his advisers made about his proposed “Muslim ban” during his campaign and after his election. The judge called the evidence of animus “significant and unrebutted.”
“The court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has,” Watson wrote.
The state of Hawaii and Dr. Ismail Elshikh, the imam of the Muslim Association of Hawaii, challenged Trump’s order, which was a revision of an earlier, broader ban that the 9th Circuit blocked on due process grounds.
The revised order targets six instead of seven countries (Iraq was included in the original), makes no mention of religion, exempts green card holders and allows for exceptions in certain cases.
Hawaii argued that the new order would still hurt the fight against terrorism and create difficulties in the recruitment of university students and faculty.
Elshikh said the order stigmatized Muslims by creating the impression that their religion was “disfavored.”
By focusing on nationality, Trump’s order would bar a Syrian national who had lived in Switzerland for decades but not a Swiss national who had immigrated to Syria during the civil war, the challengers argued.
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