By Sarah King
Capital News Service
RICHMOND – A panel of 13 federal judges on Monday interrogated lawyers for President Donald Trump and plaintiffs challenging his revised executive order banning travel from six Muslim-majority countries.
The 4th U.S. Circuit Court of Appeals heard oral arguments in the high-profile case, in which the American Civil Liberties Union has challenged the order as unconstitutional on the basis of religious freedom.
The Richmond-based appellate court will decide whether to uphold an injunction issued by a federal judge in Maryland blocking Trump’s executive order.
At issue in Richmond on Monday was the tension between securing national security interests and ensuring the First Amendment’s Establishment Clause, which guarantees freedom of religion. Acting Solicitor General Jeffrey Wall squared off against ACLU immigration attorney Omar Jadwat on the first-ever live broadcast of the 4th Circuit Court on C-SPAN.
“In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban,” the U.S. District Court’s opinion states. It said evidence “suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.”
On Jan. 27, shortly after taking office, Trump signed an executive order prohibiting visitors from seven Muslim-majority countries. After the 9th U.S. Circuit Court of Appeals blocked that order, Trump revised it. The revised order, issued on March 6, banned travel from six predominantly Muslim countries. (Iraq was dropped from the list of banned nations due to “ongoing cooperation between Iraq and the United States in fighting ISIS.”)
The revised order, intended to take effect March 16, also halted Syrian refugee admissions for 120 days. Unlike the initial executive order, green-card and visa holders would be exempt from the ban.
Although a randomly selected panel of three judges typically hears cases in appellate courts, the ACLU successfully filed a motion for a full panel, or “en banc” hearing, last month. Ten of the 13 judges Monday were appointed by Democratic Presidents Barack Obama or Bill Clinton. Two conservative judges – J. Harvie Wilkinson III, who is Wall’s father-in-law, and Allyson Duncan – recused themselves from the case.
During oral arguments, Wall said Trump’s travel restrictions were not religiously motivated but were intended to better screen “all nationals” from the cited countries who might present terrorism and national security threats.
The order included citizens from Syria, Sudan, Somalia, Yemen, Iran and Libya – each of which appeared on a 2015 State Department list of “high risk” states for terrorism.
“(Trump) made clear in the months leading up to the election … what he was talking about was threats from specific countries,” Wall said. “He made clear he wasn’t talking about Muslims all over the world – and that’s why it’s not a Muslim ban.”
Several judges expressed skepticism at the assertion that the ban was issued for reasons of national security. They pointed to evidence in the District Court’s opinion citing multiple statements Trump made at various stages of his presidential campaign last year. During the campaign, Trump called for “a total and complete shutdown of Muslims” entering the United States, stating that “Islam hates us.” He repeatedly promised to impose a Muslim ban if elected.
“The president never repudiated the campaign statements he made,” said Judge Robert B. King. “He changed it from religion to nationality … and (New York City Mayor Rudolph Giuliani) advised him to do it that way. But he’s never repudiated what he said.”
Wall countered by stating Trump could not be held accountable for what he said on the campaign trail before taking official government office.
“(Trump) was elected … he took an oath to uphold the constitution,” Wall said. “What he was saying was, ‘I want a brief opportunity – as the last president had – to make sure the vetting procedures we have in place are adequate.’”
Judge Barbara Keenan asked Wall if barring millions of nationals was perhaps too broad, or even effective.
“It really is about 200 million people caught in this net when you add up these six countries,” Keenan said. “Does that affect the facial legitimacy of the order when it has such a broad sweep of 200 million people?”
Judge Henry F. Floyd asked Wall if there was “anything other than willful blindness” that would bar Trump’s previous comments from qualifying as an “animus” – hostile motivation – against Muslims. He cited in particular a statement by presidential press secretary Sean Spicer that the principles of the second order “remain the same” as the first executive order, which was ruled unconstitutional in February.
In contrast, Judge Dennis Shedd asked Jawat if, even in the presence of a proven animus, the president is barred from acting in the interest of national security.
“If, in this hypothetical, the president has a clear animus against a religious group and it becomes clear to everybody that group presents a clear national security threat and everybody agrees to that – can that president take action against that threat or is the president disqualified from acting on that threat because of that animus?” Shedd asked.
According to the U.S. District Court ruling, 10 former national security, foreign policy and intelligence officials, four of whom were aware of the available terrorism intelligence as of Jan. 19, 2017, stated “there is no national security purpose for a total bar on entry for aliens” from the listed countries.
“The officials note that no terrorist acts have been committed on U.S. soil by nationals of the banned countries since September 11, 2001, and that no intelligence as of January 19, 2017 suggested any such potential threat,” according to the opinion.
Jawat noted that Trump’s executive order did not include all of the countries on the State Department’s 2015 list but targeted Muslim-majority states. He added that before signing the order, Trump did not consult any of the relevant agencies regarding whether those countries actually posed a threat domestically.
“So he offended the bureaucracy? That’s a constitutional crisis? He offended the bureaucracy?” Shedd asked rhetorically.
The 9th U.S. Circuit Court of Appeals, which barred Trump’s first immigration Executive Order, will consider Trump’s second travel ban tomorrow, also live on C-SPAN.