Lawyer: Ban is nothing like Japanese internment
- Author: Adam Floyd May 16, 2017,
May 16, 2017, 9:29
The panel is hearing arguments over Haw.
(AP Photo/Ted S. Warren).
Whether the president meant to target members of a particular religion matters because a key argument by Hawaii - and other plaintiffs suing over the travel ban across the country - is that the executive order amounts to a violation of the establishment clause of the Constitution, which prohibits favoring or disfavoring members of a specific faith. The U.S. Supreme Court, in another case, ruled similarly three years later. Meanwhile, the Trump administration is trying to convince the appellate court that the ban is motivated by national security concerns, and not religious bias.
"But the judges hearing Monday's arguments asked probing questions of both sides", the New York Times reports, "and may not be ready to endorse the sweeping reasoning of a federal judge in Hawaii who blocked major parts of the revised order". It was the first federal appeals court ruling that determined gay marriage bans were unconstitutional. Trump wants those decisions reversed.
Two lawyers with broad experience before the U.S. Supreme Court argued for and against President Donald Trump's travel ban Monday before a panel of the 9th Circuit Court of Appeals.
And the U.S. Court of Appeals for the 9th Circuit, which already prevented an earlier version of the executive order from being enforced, seemed to once again harbor doubts about it, despite Trump's attempt in March to water it down and insulate it from legal challenges. Acting Solicitor General Jeffrey Wall said he had, in that he had "clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them".
The U.S. Supreme Court is expected to have the final say over the order.
Solicitor General Jeffrey Wall defends Trump's executive order on immigration.More news: Sunny, warm weather through the end of the week
"This order is aimed at aliens overseas, who themselves don't have constitutional rights", Wall said during Monday's hearing, which was broadcast live on C-Span and other news outlets.
Judge Michael Daly Hawkins asked if Trump had ever said he was wrong about calling for a Muslim ban on the campaign trail.
Monday's hearing was again before a three-judge panel of the Ninth Circuit, which Trump has complained about before on Twitter, accusing the San Francisco-based circuit of having a "terrible record".
"If you rule for us, you leave intact the president's powers, including every decision every president has made in our lifetimes, and you preserve a status quo that has existed for decades", Katyal said. In that event, the White House might have to rethink the outlines of an order to carry out one of Donald Trump's signature promises as a candidate and as president.
In 1952, with the nation fearful of communist infiltration, Congress gave the president the authority under the Immigration and Nationality Act to take action: "Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may. suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate", the law says. How those laws might authorize or constrain Trump's actions is a key aspect of the travel ban cases. The figure was slightly higher in April, at 3,200, but it was still much lower than the months preceding Trump's order.
If Trump's executive order was the same as the one involving Japanese Americans, Wall said: "I wouldn't be standing here, and the US would not be defending it".
Earlier this month, the State Department announced it wants to review social media, email addresses and phone numbers from some foreigners seeking USA visas, as part of the Trump administration's enhanced screening of potential immigrants and visitors. Neither U.S. District Judge Theodore Chuang in Maryland nor Watson in Hawaii bought the administration's reasoning that the ban is about national security. That's the ruling that put the revised travel ban on hold back in March. But the scope of the rulings differed.
The order would temporarily halt refugees from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the country.