A three-judge panel of the U.S. Court of Appeals for the 9th Circuit heard oral argument yesterday in a challenge to the executive order signed by President Donald Trump on March 6. Colloquially known as the “travel ban,” 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. Yesterday’s oral argument came just one week after the full U.S. Court of Appeals for the 4th Circuit heard oral argument in a similar challenge; in both cases, federal trial courts had blocked the government from implementing the order. Last week’s argument suggested that there was a majority on the 4th Circuit to uphold the Maryland judge’s order putting the ban on hold; yesterday’s argument before the 9th Circuit panel could lead to a comparable result, although perhaps on a different theory than that relied on by the Hawaii trial court and also with a narrower scope.
The case before the 9th Circuit yesterday was filed by the state of Hawaii and Ismail Elshikh, a U.S. citizen of Egyptian descent who serves as the head of a Hawaii mosque and is hoping to bring his mother-in-law, a Syrian national, to the United States. The challengers contend that the president’s order violates both the Constitution (by, among other things, favoring one religion over another) and federal laws governing immigration, which allow the president to suspend the entry of non-citizens into the country when he finds that their entry would be detrimental to the interests of the United States.
Arguing on behalf of the United States, as he did in the 4th Circuit, Acting Solicitor General Jeffrey Wall told the court that both the Constitution and federal law give the president broad authority to prevent non-citizens from entering the country when he deems it necessary to protect the United States. Wall’s opponent, former Acting Solicitor General Neal Katyal, countered that a ruling for the Trump administration would allow the president to take a “magic eraser to the entire” body of federal laws. By contrast, Katyal contended, a ruling for the challengers would “preserve a status quo that existed for decades” while at the same time leaving the president’s powers intact.
The three judges on the panel – Senior Judge Michael Hawkins, Judge Ronald Gould and Judge Richard Paez – devoted a significant portion of yesterday’s oral argument to an issue that had also troubled the 4th Circuit last week: What role, if any, should the president’s campaign statements about banning the entry of Muslims into the United States play in the court’s evaluation of the March 6 executive order?
Gould asked Wall how the court should determine whether the executive order is a “Muslim ban” disguised as a policy intended to promote national security. Wall responded that the question was the “nub” of the case. In his dissent from a 1972 case challenging the denial of a visa to a Belgian journalist who described himself as a Marxist, Wall noted, Justice Thurgood Marshall had suggested that courts should look, even if only briefly, at the rationale underlying the policy at issue in that case, but the majority of the Supreme Court declined to do so. It was enough, the court ruled, that the policy had a legitimate purpose on its face. And in any event, Wall emphasized, the president subsequently clarified that his statements referred to Muslim terrorist groups and the countries that shelter them – not to all Muslims generally.
Paez later asked Katyal whether the court should account for the fact that Trump made his statements during a highly contentious campaign. Katyal conceded that the case might not be before the court of appeals if it were based only on campaign statements. But, he suggested, Trump had effectively rekindled those statements as president. And Katyal reassured the judges that they didn’t need “to be Sigmund Freud” to affirm the lower court. Instead, he explained, the important question is simply what an objective observer would think of the president’s statements, and in this case any objective observer would believe that the order was intended to discriminate against Muslims.
Perhaps seeking to avoid the question of what role the president’s statements should play in their assessment, the judges yesterday also spent some time discussing whether the order might also violate federal immigration law – specifically, if it was not based on an adequate finding that the entry of non-citizens would be detrimental to the country’s interests. Gould raised this question with both Wall and Katyal, asking Katyal whether the 9th Circuit could uphold the district court’s injunction based on the immigration statute if it concluded that the challengers’ claim that the order disfavored Islam did not support the injunction.
Katyal told the judges that the entry of citizens from the six countries named in the order could not be detrimental to the interests of the United States because Congress had already determined a few years ago that a ban on entry was not warranted, opting instead to simply require residents of these countries to obtain a visa to come to the United States. But Wall emphasized that the order did not suggest that everyone in the six countries was dangerous; instead, it simply imposed a temporary hold on visas for residents of those countries to allow the federal government to reassess its vetting procedures.
The judges also at least hinted that they might narrow the scope of the district court’s order. Hawkins seemed somewhat troubled by the prospect that the current injunction would bar the government from studying the issues that are discussed in the order. Is there any justification for that part of the order, he asked Katyal? Wall tried to capitalize on this concern in his closing summation, telling the three judges that, even if the federal government is wrong about the challengers’ right to sue and the merits of their claims, the relief to which they are entitled “should be so much more limited” – providing a visa to Elshikh’s mother in law, for example, and to other Muslim students who might come to Hawaii, but not extending nationwide. We are likely to know soon whether the judges who heard his appeal agree with him.