(USA Today) A federal appeals court in Virginia grilled the Trump administration over its attempts to institute a travel ban against six majority-Muslim countries, repeatedly asking why it should ignore President Trump's vows to institute a "Muslim ban" that would violate the First Amendment.
The judges of the 4th U.S. Circuit Court of Appeals in Richmond on Monday (May 8) listed statements Trump and his officials made before and after he became president and signed two versions of the travel ban that clearly said, or hinted at, a religious basis for the executive orders.
"Is there anything other than willful blindness that would prevent us from getting behind those statements?" asked Judge Henry Floyd.
Judge James Wynn pointed to Trump's comments when he signed the first executive order, when he said, "We all know what that means."
"Don't we get to consider what was actually said here, and said very explicitly?" Wynn said. "There was sort of a wink and a nod."
Acting Solicitor General Jeffrey Wall responded that the second travel ban was revised to remove any mention of religion and a president needs to be able to act to defend the national security of the country, no matter what he said during the campaign.
"The statements were ambiguous," Wall said. "The president clarified over time that what he was talking about were countries and territories that have known links to groups like ISIS (Islamic State) and al-Qaida."
The 13 appellate judges, who include 10 nominated by Democratic presidents, seemed likely to rule against Trump. They concluded the hearing without issuing a ruling, which could take weeks to finalize.
But Monday's hearing exposed potential problems with arguments laid out by immigration advocacy groups that filed the lawsuit that could come back to haunt them if the case reaches the Supreme Court.
During the two-hour hearing, the three judges who were appointed by Republican presidents pressed Omar Jadwat, an attorney with the American Civil Liberties Union, asking how long Trump would be hamstrung by his previous comments.
"How long does that taint last?" asked Judge Albert Diaz.
Others asked how far back into Trump's history they can go to understand his intent when acting as president.
"Can we look at his college speeches? How about his speeches to businessmen about 20 years ago? Are we going to look at those, too?" Judge Paul Niemeyer asked.
Judge Dennis Shedd asked what would happen if Trump apologized for his previous statements about Muslims and whether that would then allow him to institute his travel ban.
"What if he says I'm sorry every day for a year?" Shedd asked, drawing laughter from the courtroom.
Jadwat said none of that mattered given the history of Trump's views in this case.
"It's possible that saying sorry isn't enough," he said. "That's true in a lot of circumstances."
Monday's hearing was part of the ongoing legal battle over Trump's attempts to temporarily suspend some portions of legal immigration to allow time to set up stronger vetting procedures.
The ban would block most immigration from six countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — from entering the U.S. for 90 days, and suspend the entire refugee program for 120 days. Critics say Trump's executive order is nothing more than the Muslim ban he promised during his presidential campaign.
His first order, signed Jan. 27, quickly spurred chaos at airports around the world. It set off a rush of lawsuits that culminated with a federal judge in Washington state issuing a nationwide ban seven days later. His ruling was upheld by the 9th U.S. Circuit Court of Appeals in San Francisco. The Trump administration decided not to appeal that ruling to the Supreme Court, opting to revoke the order and issue a new one.
A federal judge in Hawaii then blocked the revised travel ban just hours before it was set to go into effect March 16. U.S. District Judge Derrick Watson ruled there was "significant and unrebutted evidence of religious animus" toward Muslims in the revised order. The next day, U.S. District Judge Theodore Chuang in Maryland issued another nationwide block on a section of the travel order.
The 4th Circuit judges are handling the ruling from Maryland, which was brought by several foreign-born people who are now U.S. citizens and green card holders. They fear their immediate relatives will be blocked from joining them under the travel ban. Next week, the 9th Circuit will hear oral arguments in the Hawaii case.
During Monday's hearing, judges also questioned the government about the status of its review of immigration vetting procedures. Why does the Trump administration continue insisting on 90- and 120-day travel suspensions, they asked, if it's already had so much time to improve vetting procedures? Judge Stephanie Thacker said the portion of Trump's order calling for a vetting review was in place for nearly two months.
"Was any vetting (review) done in those 50 days?" she said.
Wall said government attorneys have interpreted court rulings as barring them from doing so.
"We've put our pens down," he said. "We haven't done any work on it."
If the nationwide blocks are upheld by either the 4th or 9th circuits, the case will likely end up before the Supreme Court, where Trump might have his best chance to implement the travel ban.
The high court, now at full strength with the addition of Trump's nominee, conservative Justice Neil Gorsuch, has divided in the past on immigration issues. Those 4-4 ties, which were commonplace after the death of Justice Antonin Scalia, could tilt in Trump's favor with Gorsuch on the bench.