A large crowd rallies on the steps of the U.S. Supreme Court, led by top Democrat lawmakers, to denounce President Donald Trump’s executive order banning immigration from 7 Muslim-majority countries, on January 30, 2017.
Acting Solicitor General Jeffrey Wall barely began to defend President Donald Trump’s travel ban executive order Monday before he was asked to explain why two provisions in the Immigration and Nationality Act do not conflict.
In oral arguments Monday afternoon at the U.S. Court of Appeals for the Fourth Circuit, Wall was asked why one provision in the law, which prevents discrimination based on nationality in the issuance of visas, doesn’t limit another, which gives the president authority to block certain immigrants from entering the country. That difference, between issuing a visa and barring entry, is key to this case — if the latter provision is not blocked by the first, then the president’s executive order is in violation of the law.
Judge Barbara Keenan implied that the president did not follow the plain language of the INA statute at hand. She asked what in the revised order shows that allowing the foreign nationals into the country would be “detrimental” to the national interest. Wall replied that the president just wanted time to review vetting procedures so he could be certain.
“He has to find that they would be detrimental to the interest of the U.S.,” Keenan said. “Sounds to me like you’re saying the president is saying, ‘gee, they may be.’”
The judges also seemed reluctant to ignore public statements Trump made on the campaign trail and in office. While the government has argued that Trump’s campaign statements don’t matter because they happened before he was inaugurated, Judge Robert King said “all that stuff was reaffirmed after the election.”
King even pointed out Trump’s comments about a Muslim ban were still on the president’s website at the time the district court issued its underlying order blocking provisions of the travel ban.
Judge Henry Floyd then asked Wall if there was “anything other than willful blindness” that should prevent the court from considering those comments. Wall replied that respect for the president and his authority would, and that the lower court had applied the wrong standard in deciding whether to look at the statements in the first place. King, in a later exchange, seemed skeptical.
“He’s never repudiated what he said about the Muslim ban,” King said.
As soon as American Civil Liberties Union attorney Omar Jadwat took the stand, the judges pressed him about the plaintiffs’ standing. Judge G. Steven Agee asked how, if none of the individual plaintiffs were applying for nonimmigrant visas, do they have standing to bring claims about the issuance of such visas. Jadwat said the Establishment Clause claim was sufficient because the travel ban “is embodying the message of condemnation to their religion.”
But the real showdown came over whether the order is facially illegitimate. Judge Dennis Shedd gave a hypothetical—if a president had a clear animus against a religious group, but that group clearly posed a threat to the country, could the president “act in any way” against that group. Jadwat said yes, if there’s a national security risk, but added the risk doesn’t exist in the current case.
Judge Paul Niemeyer, in his first question of the argument, gave Jadwat another hypothetical. He asked if the order would still be illegitimate if a different candidate won the election.
“If some other candidate had won the election and issued this order, I gather you would have no problem with that,” Neimeyer said.
Jadwat tried to dodge the question, but eventually reached the conclusion that it doesn’t matter who issued the order because there’s “a logical problem” with it. If there were a legitimate threat “you would come up with a policy” different than the one in the order, Jadwat elaborated.
Monday’s hearing marks the first appellate argument concerning the revised order, issued March 6 after the first one was blocked by a district court in Washington, a decision later upheld by the Ninth Circuit. The Ninth Circuit will hear oral arguments on the revised ban next Monday.
All but two of the Fourth Circuit’s active judges are on today’s en banc panel. Judge J. Harvie Wilkinson III recused himself because his son-in-law, acting Solicitor General Jeffrey Wall, is arguing the case for the government. Judge Allyson Duncan also recused. Both Wilkinson and Duncan are conservative, leaving only three conservative judges on today’s 13-member panel.
The revised order bans entry by immigrants from six majority-Muslim countries. Plaintiffs in the case include refugee and Muslim rights organizations, as well as individuals affected by the order—mostly those with loved ones in the six targeted countries.
Cogan Schneier covers litigation in Washington, D.C. for the National Law Journal and Law.com. Contact her at [email protected]. On Twitter: @CoganSchneier
