The U.S. Court of Appeals for the 4th Circuit heard oral argument today in a challenge to the executive order signed by President Donald Trump on March 6. Citing the need to “protect the Nation from terrorist activities,” the order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as well as the admission of refugees into the United States. The March 6 order replaced a January 27 order that stalled in the federal courts, but a federal trial judge in Maryland put the new order on hold as well, leading to today’s appeal by the federal government. Lawyers representing the federal government and the challengers faced tough questions from virtually all of the 13 judges who participated in today’s hearing. When Chief Judge Roger Gregory finally gaveled the hearing to a close after more than two hours of argument, the challengers had reason to be optimistic, although the appeals court is likely to be sharply divided.
The plaintiffs in the case allege that even though the revised executive order does not say so specifically, it was still intended to discriminate against Muslims – as evidenced by Trump’s statements during his campaign and after his election. But a central issue in today’s hearing was whether the court of appeals should consider those statements at all. And the two sides were, as Judge Robert King told Omar Jadwat, who argued on behalf of the challengers, “like ships in the night.”
Acting Solicitor General Jeffrey Wall, representing the federal government, urged the court not to look beyond the language of the executive order itself at other possible evidence of the president’s intent. It is enough, he suggested, that the Trump administration had a legitimate reason – protecting the country from terrorism – for the order.
But some judges were skeptical that courts could not consider the president’s statements at all. Judge James Wynn suggested that courts should not defer to the executive branch’s explanation if the administration had ulterior motives. And in determining whether the president acted in bad faith in issuing the order, he asked, shouldn’t courts be able to look at the president’s statements? “There was a wink and a nod,” Wynn noted, when the president signed the second executive order.
King told Wall that when, as in this case, the plaintiffs argue that a government policy violates the Constitution’s prohibition against favoring one religion over another, courts should look at the policy’s purpose. If you look at the purpose of the policy, he continued, then you have to look at what’s going on behind it. “And that,” King concluded, “takes you back to what has been said.”
Judge Henry Floyd reminded Wall that, after the second executive order was signed, White House press secretary Sean Spicer told members of the media that the principles behind the order remain the same as in the first order, and that Trump had “continued to deliver on campaign promises.” Is there anything other than willful blindness, Floyd asked Wall, that would prevent us from looking behind those statements?
Other judges, however, wondered how courts could draw the line if they were to consider statements by the president. Would statements suggesting a discriminatory intent forever “taint” the order? Judge Dennis Shedd gave Jadwat a hypothetical: If the president clearly dislikes a religious group, but it later becomes clear that the group is involved in a situation that could harm the United States, does the president’s animus bar him from ever taking action against the group? If the attorney general and the director of the Department of Homeland Security were to recommend a temporary pause in immigration from the six countries to diminish the risk of terrorism, Shedd continued, wouldn’t that override any “taint” that might exist?
Judge Paul Niemeyer then chimed in. If courts can look at the president’s statements, can they also go back to look at his speeches while in college, or his speeches to businessmen 20 years ago? Niemeyer also pressed Jadwat to concede that if a different president, who had not made similar statements about a “Muslim ban,” issued the same executive order, it would be constitutional. Jadwat, Niemeyer suggested, was essentially asking the court of appeals to overlook a Supreme Court decision holding that an executive order like this one is legitimate by arguing that the order can become illegitimate based solely on the president’s campaign statements. Jadwat struggled to answer Niemeyer, who was relentless.
But Judge Barbara Keenan tried to come to Jadwat’s aid. If we can’t consider what the president said during the campaign, she asked him, do you lose? Jadwat responded that the challengers would still win, because the record in the case also contains other facts that are not statements by the president – for example, that intelligence officials indicated that the executive order would not actually reduce terrorism in the United States. Moreover, Jadwat emphasized, after Trump took the oath of office, Trump’s statement calling for a complete ban on the entry of Muslims into the country remained on the campaign website. That led King to ask Jadwat whether the statement could still be found on the website. Jadwat responded that it had been there the last time he checked; however, the statement was apparently removed today.
Shedd and Niemeyer also suggested that the executive branch should be entitled to some level of deference, particularly when it comes to immigration. Courts give deference to administrative agencies and to Congress, Shedd observed; shouldn’t they give it to executive branch officials as well? And Niemeyer complained to Jadwat that if the challengers prevail, “I don’t know where it stops.” If the executive branch increases its background checks for visa applicants coming from countries where terrorism is a problem, Niemeyer lamented, allegations of discrimination will inevitably ensue, leading to further debate and more second-guessing of the executive.
Wall finished his time at the lectern with an fervent plea to the judges to recognize what, in the government’s view, is at stake in this case. It really “all boils down” to the president’s statements, he stressed. And, he added, although the executive order at the heart of this case has been the subject of “heated and passionate” debate, the precedent that the court’s decision will set on the president’s power to keep the United States safe “will long transcend” this particular order.
Next week, the U.S. Court of Appeals for the 9th Circuit will hear argument in the government’s challenge to an order by a Hawaii judge blocking the implementation of the executive order. It is hard to predict when the two courts of appeals will issue their rulings, but the cases could move quickly to the Supreme Court after that.