Ninth Circuit Court of Appeals Hears Appeal of Muslim Ban 2.0

Image courtesy of AJC

On Monday, May 15th, the United States Court of Appeals for the Ninth Circuit heard the appeal of the order from a Federal District Court Judge in Honolulu blocking the March 6th Muslim Travel Ban. State of Hawaii v. Trump resulted in a preliminary injunction against the so-called Second Travel Ban. The court began the hearing by noting that it was “very aware of the importance of this case.”

The Acting Solicitor General Jeffrey Wall, representing President Trump, began by citing a Nixon-era case that banned an economics professor, Ernst Mandel, from visiting the United States to give an academic lecture as the basis for denying people from six Muslim-majority countries entrance to the United States. The court pointed out that more recent case law carved out a “bad-faith” exception to the general rule that the President had the power to exclude potentially dangerous immigrants. The court repeatedly pressed the Solicitor General on whether the court was required to ignore President Trump’s repeated promises of imposing a Muslim Ban prior to taking office in determining if he acted in bad faith by claiming the executive orders were not motivated by anti-Muslim animus.

The Solicitor General said that the statements of a private citizen (Donald Trump) should not be used to determine the motives for the ban issued by the President (Donald Trump). In other words, the words of Trump when he was running for office cannot inform us of Trump’s views after he became President.

“There is no case like this, is there?” said one judge, adding, “This [executive] order is an extremely broad order,” banning millions of people from coming into the United States. The cases the Solicitor General cited in support of the court did not look at the underlying motive for denying visas. All involved individual immigrants and visitors being denied visas, not whole nationalities.

The court asked the Solicitor General whether the President “has ever disavowed his campaign statements, has he ever stood up and said that ‘I said before that I wanted to ban all members of the Islamic faith from entering the United States. I was wrong.’” The Solicitor General said “Yes, he has,” but could cite no quotes from Trump renouncing the Muslim Ban. The Solicitor General repeatedly said he believed that the court should not look at the motives behind the ban. He argued that since the order itself never explicitly talks about banning Muslims, it is improper for the court to find that the Muslim Ban is a violation of the First Amendment.

The court pointed out that by the Solicitor General’s standard, we could have another program like the World War II internment of the Japanese, and the court would be prevented from looking at whether it was racially motivated.

The court also questioned whether the President had met the requirement that before he could block anyone’s entry to the United States, he had to first find that person’s entry “detrimental” to the safety of the United States. In the past, these “detrimental to the security of the United States” visa denials have been individual case by case adjudications. In this case, a person need only be from one of the six countries on the banned list to be denied admission.

Neal Katyal, arguing against the travel ban, said that one did not need “to be Sigmund Freud” to discern Donald Trump’s motives in imposing the ban.

A decision on this appeal is expected soon.

You can watch the oral arguments here.