Trump Travel Order Faces Second Test In Appeals Court

SEATTLE, WA — The Ninth Circuit Court of Appeals heard arguments Monday before a three-judge panel in the lawsuit brought by the State of Hawaii against the federal government that challenges the constitutionality of President Donald Trump's travel order. U.S. Solicitor General Jeffrey Wall squared off against Neal Katyal, an attorney for the state of Hawaii, about the legality of Trump's order, and whether Trump's campaign season statement about Muslims informed the executive order.

Wall argued that the courts should look at Trump's travel ban objectively and without considering statements Trump made about Island while on the the campaign trail. Wall asked the three-judge panel to apply the "Mandel" standard to the case, which gives the executive branch power to deny visas to people under the Immigration and Nationality Act.

Katyal asked the court to defer to a previous Ninth Circuit Court of Appeals ruling on the first travel ban - the one decided after the state of Washington sued Trump - which found that the Mandel standard does not apply.

U.S. District Judge Derrick Watson in Hawaii blocked the second travel ban on March 16, less than 24 hours before it would've gone into effect. The second travel ban executive order was issued March 6 by President Trump.

The order, titled, "Protecting The Nation From Foreign Terrorist Entry Into The United States," temporarily bans the issuance of news visas to nationals of six majority-Muslim countries and also temporarily suspends the U.S. refugee program. Soon after the ruling in the case brought by Hawaii, a judge in Maryland also blocked part of the order, as part of a separate lawsuit. A federal appeals court in Virginia heard arguments in that case last week.

The three-judge panel on Monday grilled both Wall and Katyal about the case.

"How is a court to know if in fact this is a Muslim ban under the guise of a national security justification?" Judge Ronald Gould asked Wall at one point.

Wall replied that the court doesn't have to worry about whether the order is a Muslim ban, just to determine whether under a "rational basis review, is it legitimate?" Wall also implied that Trump had stopped making statements about Muslims after the campaign was over.

Katyal, meanwhile, read a number of Trump's campaign trail statements; but he also pointed out that Trump said that he would prioritize Christian migrants from the Middle East "big league."

The case also drew comparisons to the executive order that sent Japanese-Americans to internment camps. Judge Michael Hawkins asked Wall whether the case Korematsu v. United States would "pass muster" under the Trump administration's legal argument for upholding the travel ban.

In the Hawaii case, the judge's freeze on the new order explicitly prohibits "the enforcement of [the ban] in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas."

The first attempt by Trump in January to curb immigration from nations he sees as terror-prone also failed to hold up in court.

That executive order, a more extreme version of the current one, was halted by federal judges in both Brooklyn and Seattle just one day after the president signed it — but not before creating mass confusion and chaos at airports across the U.S., as Customs and Border Protection agents began detaining immigrants and putting them on planes back to their home countries.

For the revised version of the order to be fully reinstated, the government would have to win in both the ninth circuit and in the appeals court in Virginia.

>>>You can watch the full arguments here>>>

Simone Wilson and Neal McNamara contributed reporting.

Patch will update this report.

Image by Simone Wilson/ Volunteer attorneys at JFK Airport in New York City offer legal assistance to those affected by the travel order in February