Trump Travel Ban Returned To Court, With President's Words At The Center

May 8, 2017
Originally published on May 10, 2017 11:56 am

Updated at 7 p.m. ET

A 13-judge panel of the U.S. Court of Appeals for the 4th Circuit heard arguments on Monday over President Trump's revised travel ban, with judges repeatedly questioning the government's lawyer in the case about Trump's campaign call "for a complete and total shutdown" of Muslims entering the country.

The president's first executive order restricting visitors from a handful of majority-Muslim countries provoked chaos at airports across the country in January. Federal judges stepped in to block the order, partly because it included legal permanent residents, who have rights under the U.S. Constitution.

Weeks later, the White House issued a new order, dropping Iraq from the list of countries whose travelers faced restrictions and making clear green-card holders would not be covered.

Judges on the court based in Richmond, Va., on Monday returned over and over to remarks made by Trump during the campaign. Judge Henry Floyd questioned Acting Solicitor General Jeffrey Wall about whether the court shouldn't take those remarks into account when considering the constitutionality of the President's executive order. He asked, "Is there anything other than willful blindness that would prevent us" from considering those statements?

Wall responded that the judges should consider only the text of the order itself, and not other statements by Trump. "This is not a Muslim ban," Wall asserted. "Its text doesn't have anything to do with religion. Its operation doesn't have anything to do with religion."

But refugee groups and individuals separated from family members overseas said they are taking the president at his own word: trying to use public statements by Trump and his aides during the campaign and after to prove the order is motivated by religious animus.

Judges also noted the presence on the Trump campaign website of the "Muslim ban" promise, which was only taken down Monday afternoon after it was brought up in the daily White House briefing.

Omar C. Jadwat, a lawyer at the American Civil Liberties Union, argued the plantiff's case. He said the new executive order violates the Constitution's Establishment Clause, which requires the government to adopt a neutral approach to religion, and a 1965 federal immigration law that bars discrimination on the basis of national origin.

The Justice Department countered that the president enjoys sweeping authority at the border — an outgrowth of his responsibility to protect and defend national security. A court filing by the Trump administration described the revised order as a "temporary suspension of entry," or a chance to pause and come up with better vetting procedures.

But 42 former national security officials filed their own court brief to disagree. They said there's no legitimate basis for restricting visitors from the six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Actually, their filing said, not a single American has died in a terrorist attack on U.S. soil at the hands of someone from those six nations in the past 40 years.

On the other hand, several states including Alabama, Arizona, Florida, South Carolina and Texas have weighed in on behalf of the Trump administration.

No court ruling was expected Monday from the U.S. Court of Appeals for the 4th Circuit. But that case does not signal the end of the road. In fact, in one week, on May 15, a different federal appeals court, the 9th Circuit, will hear arguments in a similar case brought by the state of Hawaii.

The U.S. Supreme Court could be the ultimate decider.

NPR's Brian Naylor contributed to this report.

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One of President Trump's top priorities will get a test in court today. A federal appeals court in Richmond, Va., will hear arguments about the legality of the president's revised travel ban. The White House says restricting visitors from six majority Muslim countries protects national security. Immigration advocates say it's an unconstitutional attack on Muslims.

NPR's Carrie Johnson has been covering the case. And she's on the line now. Good morning, Carrie.

CARRIE JOHNSON, BYLINE: Good morning, Rachel.

MARTIN: It's been a while since we talked about the president's executive order limiting travel. Remind us what it says.

JOHNSON: Remember, this is the White House's second attempt at a travel ban. The first one provoked a lot of chaos at airports all over the country in January. It had a hard time in the courts too, Rachel, partly because it included green card holders who have rights under the U.S. Constitution.

This new executive order came out March 6. It restricted entry to the U.S. for people from six countries - Iran, Libya, Somalia, Sudan, Syria and Yemen - for 90 days. It also restricted refugee admissions for 120 days.

MARTIN: OK. So all those six countries, those are countries with Muslim majority populations. But the White House didn't specifically mention religion in any way in the revised order. So how are lawyers making the case that this is unconstitutional?

JOHNSON: That's true. The order does not speak about Muslims or preferring Christian travelers over Muslims explicitly. But people who are suing over the ban - people in the U.S. who've been separated from their loved ones in one of those six countries - say the whole order is a pretext for banning Muslims. They say they're simply taking the president at his word.

Recall, President Trump said he'd close the border to Muslims on the campaign trail, hinted at it again this year. And that, the plaintiffs say, violates the Establishment Clause of the First Amendment. That language says the government's supposed to be neutral when it comes to religion. And the plaintiffs are also arguing that the EO violates immigration law because if - immigration law forbids discrimination on the basis of national origin.

MARTIN: What about the idea, though, that the president - any president - has a lot of power when it comes to protecting the country's borders and ports of entry? Presumably, that has a lot to do with how the government - this administration is defending the ban.

JOHNSON: That is going to be the heart of the Justice Department's argument on behalf of the Trump White House today. DOJ says this is simply a temporary suspension of entry that was done to protect national security - a chance to pause, come up with better vetting procedures.

The Trump administration says that alone is a good enough legitimate reason for this travel ban. They say the court doesn't need to delve any deeper into any statements the president or his advisers made. And besides, they point out the new order says travelers can get a waiver from the ban case by case.

MARTIN: You've been covering the evolution of this travel ban since the beginning. So, Carrie, today in the courtroom, what are you looking to hear and see?

JOHNSON: Yeah. Each side is going to get about a half an hour to argue. ACLU lawyer Omar Jadwat is arguing for the people with family overseas and refugee groups, the plaintiffs. And acting Solicitor General Jeffrey Wall is going to be arguing for the government.

No ruling is expected from the 4th Circuit Court of Appeals today. But we may be able to get some sense of where the court's going from the kinds of questions the judges are going to ask today.

MARTIN: There's a nationwide stay on the travel ban order for now. So what happens to that? What comes next?

JOHNSON: Well, we're going to be waiting for an - the argument today and then a ruling. But this argument does not signal the end of the road. There's so much litigation over this travel ban, Rachel.

In fact, Monday, one week from today, a federal appeals court for the 9th Circuit will hear related arguments in a case brought by the state of Hawaii. A lot of people think the Supreme Court is going to be the ultimate decider in this case.

MARTIN: NPR justice correspondent Carrie Johnson. Carrie, thanks so much.

JOHNSON: You're welcome. Transcript provided by NPR, Copyright NPR.