Arguments start in Trump travel ban hearing

Miranda GreerMay 16, 2017

"Starting in December 2015, when [Trump] called for a, quote, total and complete shutdown of Muslims entering the United States", Katyal said.

US district judges in Hawaii and Maryland have ordered key sections of the president's order frozen. In this image made from a C-SPAN video, participants and members in the gallery stand as three judges for the 9th US Circuit Court of Appeals enter the room in Seattle, Monday, May 15, 2017.

The U.S. Supreme Court could take up the issue if the appeals courts issue contradictory decisions.

U.S. District Judge Derrick Watson in Hawaii stopped enforcement of the executive order in March, finding it discriminated against Muslims.

The 4th U.S. Circuit Court of Appeals in Virginia is considering a similar ruling.

"What the President did here falls squarely within his constitutional and statutory authority", Wall also said.

The other nations covered under the ban are Iran, Syria, Sudan, Libya, Somalia and Yemen.

Monday's hearing was again before a three-judge panel of the Ninth Circuit, which Trump has complained about before on Twitter, accusing the San Francisco-based circuit of having a "terrible record".

Neal Katyal, arguing on behalf of the plaintiffs, told the panel that his clients are not in favor of judicial "psychoanalysis" or trying to get in President's head, but suggested Trump's past statements revealed a "repeated pattern" that would be obvious to any neutral observer.

The comparison of the two bans would appear to bode poorly for the Trump administration, given that the Korematsu case, despite being upheld, is widely reviled in both legal and social justice circles. Decades later, it was revealed Solicitor General Charles Fahy suppressed evidence from the court that there was no evidence that Japanese Americans were acting as spies - in other words, he misled the Court about the government's motives - which resulted in one of the greatest atrocities committed on American soil in the 20th Century. "This case is not Korematsu, I wouldn't be standing here and the United States would not be defending it", Wall said.

Wall, however, argues the president's policy is not a "Muslim ban", but rather Trump's good faith effort to protect rights while securing the homeland from foreign terrorists.

A three-judge panel for the Ninth Circuit Court of Appeals questioned lawyers from both sides about the statements, as they considered whether to lift one of the two court orders now keeping the revised travel ban on hold. Watson found that the travel ban likely violated the constitution's Establishment Clause by discriminating against Muslims. That's the ruling that put the revised travel ban on hold back in March.

"This order is aimed at aliens overseas, who themselves don't have constitutional rights", Wall said during the hearing broadcast live on C-Span and other news stations. In that event, the White House might have to rethink the outlines of an order to carry out one of Donald Trump's signature promises as a candidate and as president. The presiding judge, Ronald M. Gould, seemed particularly interested in that possible approach.

Outside the Seattle courtroom a group of protesters gathered carrying signs with slogans including, "The ban is still racist" and "No ban, no wall".

A different federal appeals court - the Fourth Circuit Court of Appeals, based in Richmond - heard an appeal on May 8 over a separate court order blocking just the six-country travel ban. Chuang only blocked the six-nation travel ban, saying it wasn't clear that the suspension of the refugee program was similarly motivated by religious bias.

The U.S. Supreme Court is expected to have the final say over the order. Today's case was heard by three judges who were all appointed by President Bill Clinton, so they could move relatively quickly.

In initiating the legal challenge against the second travel ban on 9 March, Hawaii Attorney General Doug Chin noted that the new order, compared with the initial ban, "nothing of substance has changed: there is the same blanket ban on entry from Muslim-majority countries".

In February, a federal judge in Seattle halted the original travel ban nationwide, and a three-judge panel on the 9th Circuit declined to reinstate it - unanimously unpersuaded by the Trump administration's national security arguments and doubting travelers had been given adequate "due process", such as "notice and a hearing prior to restricting an individual's ability to travel".

"How is a court to know if, in fact, it's a Muslim ban in the guise of national security justification?"

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