A federal appeals court heard arguments Wednesday over President Donald Trump's third travel ban, and Trump's tweets and earlier statements calling for a Muslim ban barely came up — a reflection of just how much the fight over the president's efforts to adopt a travel ban has changed since he signed the first order in January.
Arguments before the US Court of Appeals for the 9th Circuit focused on whether Trump violated federal immigration law in signing the proclamation in September that imposed travel restrictions on nationals of eight countries, six of which are majority Muslim. Lower courts partially blocked the administration from enforcing the ban, but the US Supreme Court earlier this week said it could go forward as the legal challenges play out.
The challengers are arguing that Trump did not meet the standard for suspending immigration to the United States because he failed to articulate in his latest order how current US immigration screening measures are flawed, and how the entry of the millions of foreign nationals covered by the ban would be detrimental to the United States.
The Justice Department has countered that the administration did meet its burden, pointing to findings in Trump's order that US officials identified problems with how countries covered under the ban handled information sharing in the immigration process, undermining the United States' ability to make sure that people entering the country don't pose a threat.
One thing that didn't come up at all on Wednesday: Trump's retweets last week of anti-Muslim videos posted by the UK nationalist group Britain First. Neal Katyal, one of the lead attorneys for the challengers in the 9th Circuit, tweeted in response to reports about Trump's decision to share the videos, "Thanks! See you in court next week." But he didn't address the tweets in his arguments on Wednesday.
Katyal briefly touched on the challengers' arguments that the administration engaged in religious discrimination in adopting the ban, arguments that led to discussions of Trump's statements and tweets in court fights over the previous executive orders. The record on that issue had "only gotten worse" since the 9th Circuit heard arguments on Trump's second travel ban in May, Katyal said.
But the main focus Wednesday was on claims raised under the federal Immigration and Nationality Act. The judges — in arguments that the court live-streamed on its website — probed whether the court had authority to review these types of immigration decisions by the president under the INA. The government argued that it doesn't, while the challengers said it does, and that for the court to hold otherwise would violate the separation of powers.
Judge Ronald Gould presented what he described as an "extreme" hypothetical scenario, in which the president decided to stop anyone who isn't a US citizen from traveling to the United States because he and his advisers decided that the world was too dangerous and incoming travelers posed a risk to US residents. He asked Justice Department attorney Hashim Mooppan if that would that be something the courts could take up.
Mooppan replied that it was not, at least not in terms of weighing whether the president's decision violated the INA; he said the analysis for constitutional claims would be different.
Judge Richard Paez asked Mooppan what limits there were on the president's ability to make these sorts of immigration determinations. Mooppan replied that there could be limits if the president's decision didn't implicate the type of national security and foreign policy concerns that traditionally are at play, or if, contrary to the purpose of the INA, the president simply decided that immigration was bad. But Mooppan said neither of those scenarios applied here.
Paez also asked if the indefinite nature of the president's latest proclamation — it doesn't expire, and leaves it up to the president to decide at any time whether to lift or add travel restrictions — ran afoul of the INA, which says that the president can suspend the entry of foreign nationals "for such period" that he deems necessary. Mooppan said the law didn't set a limit for how long a proclamation could be in effect.
Katyal pointed out that the 9th Circuit, in an opinion that blocked an earlier travel ban, had found that the Trump administration failed to make a finding that the current individualized immigration screening process was inadequate. That finding was again missing from the third travel ban proclamation, Katyal argued. The government had to show that the entry of certain individuals, or classes of individuals, covered under the ban would be detrimental to the United States, he said.
"You made a clear requirement to the government," said Katyal, a former acting US solicitor general. "I mean, when I was in the government, if a court, even a district court or even, you know, some small whatever court said, 'You’ve gotta make this finding,' and then you had a long interagency process and they didn’t make it, boy, that’s a dog that really didn’t bark.”
Katyal also argued that with an indefinite ban, the government's justification had to be even stronger than it was for the previous executive orders, which had expiration dates.
The US Court of Appeals for the 4th Circuit is scheduled to hear arguments in a separate set of cases challenging the third travel ban on Friday. Gould said that the 9th Circuit panel would try to publish its decision "as soon as practical." In a nod to the Supreme Court's order on Monday in which the justices wrote, "we expect that the Court of Appeals will render its decision with appropriate dispatch," Gould added, to laughter in the courtroom: "I think the Supreme Court has asked us to do that, so we shall comply."