• Travel ban arguments focus on Trump’s comments about Muslims,
Court must decide whether Trump’s past statements can be considered
Associated Press
RICHMOND, Va. — A challenge to President Donald Trump’s revised travel ban is seen as hinging on whether a federal appeals court agrees that the Republican’s past anti-Muslim statements can be used against him.
The 4th U.S. Circuit Court of Appeals wrestled Monday with whether the court should look beyond the text of the executive order to comments made by Mr. Trump and his aides on the campaign trail and after his election in order to determine whether the policy illegally targets Muslims.
“That’s the most important issue in the whole case,” said Judge Robert B. King, who was appointed to the court by President Bill Clinton.
The panel of 13 judges peppered both sides with tough questions but gave few clues as to how they might rule. The judges did not immediately issue a decision Monday.
A federal judge in Maryland who blocked the travel ban in March cited Mr. Trump’s comments as evidence that the executive order is a realization of Mr. Trump’s repeated promise to bar Muslims from entering the country. The administration argues that the court shouldn’t question the president’s national security decisions based on campaign promises.
“This is not a Muslim ban. Its text doesn’t have anything to do with religion. Its operation doesn’t have anything to do with religion,” Acting Solicitor General Jeffrey B. Wall told the appeals court while acknowledging that it could violate the Constitution to single out a religion for adverse treatment.
The countries were chosen because they present terrorism risks and the ban applies to everyone in those countries regardless of religion, Mr. Wall said. Further, the banned countries represent a small fraction of the world’s Muslim-majority nations, lawyers for the administration say in court documents.
Mr. Wall also said the Supreme Court has ruled in the past that in matters of immigration and national security, the president’s judgment is not open to judicial secondguessing.
Omar Jadwat, an attorney for the American Civil Liberties Union, noted that Mr. Trump’s call for a “total and complete shutdown” of Muslims entering the U.S. remained on his campaign website even after he took office. That call, which was still online earlier Monday, appeared to have been taken down by the two-hour afternoon hearing.
Mr. Jadwat claims the administration has failed to provide a legitimate national security reason for the policy.
Several judges expressed skepticism about the idea that the court would blind itself to Mr. Trump’s comments about Muslims.
“Don’t we get to consider what was actually said here and said very explicitly?” asked Judge James A. Wynn Jr., who was appointed by former President Barack Obama. “Even after the second order, there was sort of a wink and a nod — well, you know what I mean.”
Another judge said he was worried about the idea of a court opening the door to using a president’s past to evaluate the constitutionality of a policy. “Can we look at his college speeches? How about his speeches to businessmen 20 years ago?” asked Judge Paul V. Niemeyer, who was tapped by President Ronald Reagan.
The first travel ban in January triggered chaos and protests across the country as travelers were stopped from boarding international flights and detained at airports for hours. After a three-judge panel of the 9th U.S. Circuit Court of Appeals refused in February to let the travel ban take effect, the administration tweaked the order and issued a new one.
The new version made it clear the 90-day ban covering those six countries doesn’t apply to those who already have valid visas. It removed language that would give priority to religious minorities and erased Iraq from the list. But critics said while the new executive order impacts fewer people, it remains a realization of Mr. Trump’s promised Muslim ban and cannot stand.
On May 15, the U.S. Court of Appeals for the 9th Circuit, sitting in Seattle, will hear a similar appeal of the second travel order, which was also blocked by a federal judge in Hawaii.