(l-r) Michael Daly Hawkins, Ronald Gould, and Richard Paez.
(l-r) Michael Daly Hawkins, Ronald Gould, and Richard Paez. (Photos: ALM)

SAN FRANCISCO — A little more than 20 minutes into arguments at the U.S. Court of Appeals for the Ninth Circuit Monday, Circuit Judge Ronald Gould cut to the chase.

“The executive order sets out national security justifications,” Gould said during the hearing on President Donald Trump’s executive order limiting travel from six predominantly Muslim countries. “But how is a court to know if in fact it’s a Muslim ban in the guise of national security justification?”

Acting Solicitor General Jeffrey Wall, arguing on behalf of the Trump administration at the Seattle hearing, responded that the court should look at the text of the order and steer clear of parsing Trump’s campaign statements to determine whether bad faith underlies the order.

“The order on its face doesn’t have anything to do with religion and in operation doesn’t distinguish based on religion,” Wall said.

Three appointees of President Bill Clinton—Gould and colleagues Michael Daly Hawkins and Richard Paez—heard the government’s appeal of a ruling from a federal judge in Hawaii who blocked the executive order nationwide, finding that it discriminated against Muslims. The proceedings follow en banc arguments last week before 13 judges of the U.S. Court of Appeals for the Fourth Circuit. 

According to Wall, the plaintiffs’ case hangs on claims that citizens of the six countries have been discriminated against based on their religion. That sort of third-party claim brought on behalf of noncitizens isn’t enough to establish standing in federal court without a showing of bad faith by the government, he argued. 

Wall said the president’s statements on the campaign trail, including a 2015 pledge to stop Muslims from entering the United States, should be disregarded. More recent statements that critics argue display a religious motivation for the order shouldn’t be read in the fashion that’s “most hostile and least favorable to the president,” Wall said.

Neal Katyal of Hogan Lovells, arguing on behalf of the plaintiffs in the Hawaii case, insisted the president should be held to account for his words. “This executive order was promulgated by the president and he has billed it in a specific way,” Katyal said.

“If we don’t consider the campaign statements, do you still prevail,” Paez asked Katyal.

“Oh, absolutely,” Katyal responded.

Monday marked the second time a Ninth Circuit panel has heard arguments on the so-called travel ban. On Feb. 9, a unanimous three-judge panel left in place a ruling blocking Trump’s first executive order, which has since been modified. The litigation has drawn attention to the Ninth Circuit and stirred tensions between its liberal and conservative judges. 

Following the February ruling, Trump famously tweeted  “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Trump since has echoed the call from some Republican lawmakers to split the Ninth Circuit. In March, the circuit’s former chief judge, Alex Kozinski, blasted his colleagues legal reasoning for blocking the earlier ban.

Trump issued the revised order March 6, temporarily banning immigration from Iran, Somalia, Sudan, Yemen, Syria and Libya and suspending refugee admissions into the country.

An onslaught of legal challenges followed, including one heard last week by the full Fourth Circuit.

U.S. District Judge Derrick Watson in Honolulu issued a nationwide injunction blocking the executive order’s major provisions on March 15, the day before the revised ban was set to go into effect. Watson found that the policy illegally discriminated against Muslims in violation of the Establishment Clause of the First Amendment and negatively impacted Hawaii’s tourism-heavy economy.

In one powerful exchange Monday, Paez referenced an amicus brief from the Fred T. Korematsu Center, asking Wall whether the internment of Japanese citizens during World War II would be constitutional under the government’s legal analysis.

“This case is not Korematsu and if it were, I would not be standing here and the United States would not be defending it,” Wall said.

“There was no reference to Japanese in that executive order and look what happened,” Paez responded.

Katyal picked up on the Korematsu reference. “The government has not engaged in mass dragnet exclusion in 50 years. This is something new and unusual.”

Closing his argument Monday, Wall said the executive order “falls squarely within [the president's] constitutional and statutory authority.” Debate over the policy should take place in the political arena, not in the courts. Wall asked the Ninth Circuit to lift or narrow the injunction. 

Katyal closed his argument with a plea for judicial oversight: “If you rule for him, you defer to the president in a way that history teaches us is very dangerous.”

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