The U.S. Justice Department urged a federal appeals court to let stand President Donald Trump's revised travel ban on citizens of six Muslim-majority countries, arguing that negative comments he made about the religion on the campaign trail and after his election victory are irrelevant.
Several judges on the panel in Richmond, Va., on Monday questioned acting U.S. Solicitor General Jeffrey B. Wall why they shouldn't be allowed to consider those comments in determining whether Trump's travel directive violates the Constitution, while tough questions for American Civil Liberties Union's lawyer, Omar Jadwat, left it unclear which way the panel was leaning.
"In determining bad faith, don't we get to consider what was actually said here and said very explicitly?" Judge James Wynn asked Wall. "Even after the second order, there was sort of a wink and a nod — well, you know what I mean."
After two hours of arguments, the appeals panel adjourned without saying when it might rule. A win for Trump would be important after a series of legal setbacks involving his executive orders, including injunctions against his first travel ban and attempts to block some federal funding to cities that fail to cooperate with federal immigration agents. Trump revised the travel ban but that was halted by judges in Maryland and Hawaii. The appeals court in Virginia reviewed the Maryland judge's ruling while an appeals court in San Francisco is scheduled to hear the government's appeal of the Hawaii ruling next week.
Trump's campaign vow to implement a Muslim ban is at the core of the argument, with Wall arguing that the validity of the order should be based on its text, while the ACLU maintains the president's comments show an animus against a particular religion, which violates the Constitution's Establishment clause. That clause prohibits the government from giving preference to one religion over another.
"Is there anything other than willful blindness that will prevent us from getting behind those statements?" Judge Henry Floyd asked Wall.
Wall said respect for Trump's authority was one reason, adding that the travel ban "has nothing to do with religion."
"There are different ways to read those statements," Wall said of Trump's comments about Muslims on the campaign trail. The attorney said the president's remarks should be read by the court in ways that are "not most hostile to the president."
"Candidates talk about things on the campaign trail all the time," Wall said.
Judge Barbara Keenan questioned why there wasn't a specific link in the executive order between the people in the affected countries and a national security threat.
Keenan said the order affected 200 million people in the region. "So it seems to me there's got to be a linkage — something about those people's nationality that renders them suspect or renders them dangerous and I don't see anything in the text that does that."
Some of the justices sought to determine whether the ACLU would consider the revised executive order legal if it had been issued by a different president who hadn't made the same comments about Muslims.
"I gather you would have no problem with that, right?" Judge Paul Niemeyer asked.
"I think in that case it could be constitutional," the ACLU's Jadwat replied.
"Are you agreeing that the order is legitimate on its face?" Keenan said.
"No," Jadwat said. "The order is completely unprecedented in our nation's history, even with a secular purpose."