Donald Trump

Trump’s lawyer tells judges that travel ban is not related to Muslim-ban rhetoric during campaign

PUBLISHED : Tuesday, 16 May, 2017, 2:05pm
UPDATED : Tuesday, 16 May, 2017, 2:05pm

Federal judges on Monday peppered a lawyer for US President Donald Trump with questions about whether the administration’s travel ban discriminates against Muslims and zeroed in on the president’s campaign statements, the second time in a week the rhetoric has faced judicial scrutiny.

Acting Solicitor General Jeffrey Wall, defending the travel ban, told the three-judge panel of the 9th US Circuit Court of Appeals in Seattle that the executive order should be reinstated because it falls well within the president’s authority and is unrelated to the campaign talk of a Muslim ban.

“No one has ever attempted to set aside a law that is neutral on its face and neutral in its operation on the basis of largely campaign trail comments made by a private citizen running for office,” he said.

Further, Wall said the president had backed off the comments he made during the campaign, clarifying that “what he was talking about was Islamic terrorist groups and the countries that sponsor or shelter them.”

Neal Katyal, who represented Hawaii, a plaintiff in the lawsuit, expressed disbelief at that argument and said Trump had repeatedly spoken of a Muslim ban during the presidential campaign and after.

“This is a repeated pattern of the president,” Katyal said.

The 9th Circuit panel was hearing arguments over Hawaii’s lawsuit challenging the travel ban, which would suspend the nation’s refugee program and temporarily bar new visas for citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen. The judges will decide whether to uphold a Hawaii judge’s decision in March that blocked the ban.

Last week, judges on the 4th Circuit Court of Appeals heard arguments over whether to affirm a Maryland judge’s decision putting the ban on ice. They also questioned whether they could consider Trump’s campaign statements, with one judge asking if there was anything other than “willful blindness” that would prevent them from doing so.

Dozens of advocates for refugees and immigrants rallied outside the federal courthouse in Seattle, some carrying “No Ban, No Wall” signs.

Wall’s insistence that the travel ban should be upheld because it is “neutral” and without reference to Islam, drew pointed questions from Judge Richard Paez. An executive order issued by President Franklin Roosevelt that led to the internment of 110,000 Japanese-Americans during World War II similarly was couched as a necessity for national security and made no reference to residents of Japanese heritage, Paez noted.

The US Supreme Court upheld that executive order in a challenge brought by California resident Fred Korematsu. The ruling is now widely considered regrettable.

“Would the Korematsu executive order pass muster under your test today?” Paez grilled Wall.

“No, Judge Paez,” he answered

“Why not? ‘Facially legitimate’ — that’s all you say,” Paez said. “You emphasize ‘facially legitimate.’”

“I want to be very clear about this,” Wall said solemnly. “This case is not Korematsu, and if it were I wouldn’t be standing here and the United States would not be defending it.”

Wall went on to argue that unlike the Korematsu case, Trump’s executive order probably wouldn’t be questioned but for the statements he made as a candidate.

Paez also questioned Katyal about Trump’s statements, calling them “profound.” But the judge wondered whether Trump is forever forbidden from adopting an executive order along the lines of his travel ban.

Katyal said no, and suggested the president could begin by repudiating his earlier statements or by working with Congress.

“If you rule for him, you defer to the president in a way that history teaches us is very dangerous,” Katyal said.