Wang represented plaintiffs challenging the third iteration of President Donald Trump’s travel ban, which the Supreme Court allowed to go into effect earlier this week, pending appeals at the Fourth and Ninth circuits. Though the high court’s order was barely mentioned in Wednesday’s Ninth Circuit arguments, the en banc Fourth Circuit panel focused on it.
Judge Dennis Shedd, appointed by President George W. Bush, asked both Wang and the Justice Department’s Hashim Mooppan how to interpret the Supreme Court’s order as soon as they took the stand. Shedd said the standard for issuing a stay, like that of a preliminary injunction, is that there should be some likelihood of success on the merits for the prevailing party.
Mooppan said that the Supreme Court order shows that “we know, at a minimum,” that the high court thinks there is such a likelihood for the government.
But Wang disagreed, telling Shedd she did not think the Fourth Circuit could glean any substance from the order.
“Seems to me, to have granted the stay at all, the court had to find a likelihood of success on merits,” Judge Diana Motz, a Clinton appointee, said. “Is that wrong? Do they not know stay law?”
Wang said that in June, when the Supreme Court weighed in on Trump’s March 6 travel ban executive order and allowed it to go into effect only with respect to those with no bona fide relationship to the U.S., the court made clear it was doing so to balance the equities in the case.
In Monday’s order, Wang said, the court did not explain its reasoning.
“All this court can do is to decide the case on the record and on the law as it finds it,” Wang said.
Judge Steven Agee, also a Bush appointee, continued to press Wang. He asked if the judges should just assume the Supreme Court “omitted” the step of the stay process in which it would have considered likelihood of success on merits. Wang said there is no way to know why the Supreme Court issued the stay.
Motz later added that the Supreme Court’s order asked the Fourth and Ninth circuits to act quickly, which she said, “suggests they’re interested in whatever we come up with.”
“Or it might be they’re just interested in us getting done with it and getting something in front of them so they can rule on it,” Shedd said.
“But, of course, they could have ruled,” Motz replied. “The Supreme Court can do what it wishes.”
The arguments at the Fourth Circuit lasted for roughly two hours with rigorous questioning of both sides, which appeared to be a shift from when the liberal-majority court considered the March 6 order last May.
Judges also questioned Wang on why the courts even had the authority to judge the president’s nationality security determination.
On the government’s side, the judges asked Mooppan repeatedly about recent tweets by the president, and how they could possibly be separated from the proclamation at issue, which bars entry of nationals from eight countries, six of which are majority-Muslim.
That included tweets from Nov. 29, when the president retweeted anti-Muslim videos, and earlier this year, when the president suggested on Twitter that Muslim terrorists should be shot with bullets dipped in pigs blood.
“What do we do with that?” asked Judge James Wynn, appointed by President Barack Obama. “Do we just ignore reality and look at the legality to determine how to handle this case?”
The judges are expected to make a decision quickly, as requested by the high court.