A three-judge federal appeals panel pushed lawyers on both sides of President Trump’s travel ban Monday, focusing on whether the order amounts to a ban on Muslims, the limits of presidential power and the standard the court should use to review the order.
During nearly two-hour hearing in Seattle, the three 9th U.S. Circuit Court of Appeals judges were asked by the Justice Department attorney Jeffrey Wall to overturn a Hawaii-based judge’s order barring the administration from imposing a 90-day halt on issuing visas from six Muslim-majority countries and a 120-day suspension of refugee admissions worldwide.
Judge Richard Paez quickly took aim at the government with reference to the famous Korematsu case, in which Japanese-American Fred Korematsu challenged the U.S. internment orders during World War II. The courts upheld the constitutionality of an Executive Order that placed Japanese Americans into internment camps regardless of citizenship. Korematsu’s conviction for evading internment was overturned in 1983 and the original decision discredited.
Paez asked Wall if the internment of Japanese citizens during World War II would be legal under the government’s current analysis of the travel ban. “There was no reference to Japanese in that executive order and look what happened,” Paez said.
“The plaintiffs’ argument is that this is a ban against members of the Islamic faith,” Judge Michael Daly Hawkins added. How is it different from San Francisco’s orders blocking a Catholic cardinal who refused to allow adoptees to be placed with same sex couples? he asked.
Judge Ronald Gould also pressed Wall on the point. “How is the court to know if it is a Muslim ban in the guise of an immigration ban?”
Wall argued that the order must bear a “rational basis” for what the president intended it to do.
Hawkins asked if the President had “disavowed his campaign statements” that he would ban all Muslims once elected. The same question was asked by the 4th Circuit in Virginia last week during a similar challenge to the travel ban.
Wall insisted the president had backtracked by saying after he was elected that he’s focused on excluding Islamic terrorist groups.
Neal Katyal, attorney for the state of Hawaii, disagreed and pointed to continued anti-Muslim statements by Trump. The president called for a complete shutdown of all Muslims in this country and said ‘I think all Muslims hate us’ and that they want to come here and ‘take over our children.’
Paez said, “Those are profound statements but they were made during a contentious campaign.
Katyal insisted Trump has continued to push the idea. Last month the President said it was easier for Muslims than Christians to get into the U.S. and he was ‘going to be helping Christians big time.’
Paez responded, “what if any other president had issued the order without saying these things.
Hawkins asked if the order focused on areas of violence around the world and narrowed it to places where that occurred, “would that pass?”
Katyal said he believe such an order would survive. But under the current order, “If you’re Syrian and have lived your whole life in Switzerland, you can’t come to the U.S. You are banned. We have never done that before in U.S. history.”
Courts may give deference to presidents, “but not when it comes to religion,” Katyal said.
He concluded arging, “We have not seen anything like this in our lives, where a president has acted against a disfavored religion.” He added, “The U.S. is a beacon around the world. It is not for our sports teams, but for our Constitution and I ask that this unconstitutional and unamerican order be struck down.”
The panel took the case under submission and will issue a written ruling in the coming weeks.
Case: Hawaii v. Trump, No. 17-15589
Video of the arguments here, when posted by the court. (usually in 24 hours)