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Judges Again Wrestle With Trump’s Words on Travel Ban

Intent, statements and authority are the ‘nub’ of the case

Trump’s original travel ban sparked protests like this one at Dulles Airport. (Bill Clark/CQ Roll Call File Photo)

Another federal appeals court considered Monday whether to let the Trump administration implement its revised travel ban, grappling with the president’s comments about his reasons for the executive order and whether courts should second-guess him on a national security issue.

The three judges on the U.S. Court of Appeals for the 9th Circuit who heard the case in a Seattle courtroom didn’t clearly reveal whether they would side with President Donald Trump or the challengers during more than an hour of arguments carried live on television and the court’s live video stream.

The Trump administration wants the 9th Circuit to overturn a March ruling from U.S. District Judge Derrick K. Watson that blocked the Trump administration from implementing an executive order that the state of Hawaii says unconstitutionally targets Muslims. The Aloha State’s challenge is one of several making their way through the federal courts, and the 9th Circuit is expected to rule within the next few weeks.

Just like oral arguments in a separate case about the travel ban last week, Trump’s comments took center stage in this argument, including his campaign promise for a “Muslim ban” and saying “we all know what that means” when signing the first version of the executive order.

Judge Ronald M. Gould told acting Solicitor General Jeff Wall that 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 justification?”

“I think that’s the nub of the case,” Wall said.

Wall argued that courts are only supposed to look at the executive order on its face and not second-guess the president’s motivations. The president’s travel ban is within his constitutional and statutory authority, Wall said, and the courts shouldn’t go down the road of psychoanalyzing what candidates meant on the campaign trail.

“I know they disagree with this president and many of his policy judgments, but none of that converts that into a constitutional crisis,” Wall said. “This court shouldn’t treat it like one. It ought to leave this debate where it belongs, in the political arena.”

Judge Michael D. Hawkins asked the attorney arguing for Hawaii, Neal Katyal, if the courts set aside Trump’s comments, “Why shouldn’t we be deferential to the office of president of the United States on such issues?”

Katyal responded that is “the million-dollar question,” and said Hawaii is not impugning what is in Trump’s head — only asking the judges to decide how a viewer would view whether the ban violates the religious protections in the First Amendment of the Constitution.

“If you viewed it the other way and gave deference, then you’d really be giving the president the ability to bootstrap all sorts of things, enact all sorts of discriminatory policies, but then say, ‘You have to defer to me, I don’t think it’s discriminatory,’ ” Katyal said.

Katyal later said that ruling for Hawaii would not change the power that presidents have.

“If you rule for him, you defer to the president in a way that history teaches us is very dangerous,” Katyal said. “You open the door to so much.”

In the district court order, Watson pointed to statements from Trump in the presidential campaign and statements from other administration officials to conclude the ban was adopted in a context “full of religious animus, invective, and obvious pretext.”

Trump’s revised travel ban would temporarily block the issuance of new visas from Iran, Libya, Somalia, Sudan, Syria and Yemen — all predominantly Muslim countries — as well as suspend all refugees from entering the United States.

The three judges randomly assigned to hear the 9th Circuit case — Hawkins, Gould and Richard A. Paez — were appointed by President Bill Clinton.

The revised ban, signed by Trump on March 6, was a response to the botched rollout of his first executive order in January that sparked legal challenges and protests around the world.

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