US 9th Circuit Presses Trump Admin on Legality of Muslim Travel Ban
The three judges on the panel -- all appointees of former president Bill Clinton -- peppered the parties with questions in an hour-long televised hearing Monday, appearing eager to flesh out exactly when the court might be allowed to look behind the plain text of the president's executive order find a discriminatory purpose, CNN reported.
Two months ago, a federal judge in Hawaii halted the core portions of Trump's revised travel ban just hours before it was slated to go into effect nationwide, finding it likely violated the Constitution by disfavoring Muslims.
Trump immediately slammed the decision as "an unprecedented judicial overreach" and later tweeted about his frustrations with the West Coast-based 9th Circuit over an unrelated case.
But on Monday, acting Solicitor General Jeffrey Wall, arguing on behalf of the Trump administration, urged the judges not to delve into a "wide ranging inquiry into subjective motivation" in considering Trump's past comments on Muslims, because "the (executive) order on its face doesn't have anything to do with religion and in operation doesn't distinguish on the basis of religion."
Neal Katyal, arguing on behalf of the plaintiffs, countered that they are not in favor of judicial "psychoanalysis" or trying to get in President's head, but suggested Trump's past statements evinced a "repeated pattern" that any neutral observer would find clear.
"Does that mean the President is forever barred from issuing an executive order along these lines?" Judge Richard Paez asked.
Katyal said no, suggested he wouldn't be arguing the case if it involved past campaign statements alone, pointed out that the President has never disavowed his past statements and noted a December 2015 press release calling for a "complete shutdown" of Muslims entering the country remained on Trump's campaign website up until early last week.
"I think the most important point is if you don't say all these things, you never wind up with an executive order like this, which is why no president has done that," Katyal added. "If you rule for him, you defer to the President in a way that history teaches us is very dangerous. You open the door to so much."
The judges did not indicate when they will rule. In February, the court handed down a decision declining to reinstate the first travel ban just two days after oral arguments.
