Published: Tue, May 09, 2017
World | By Paul Elliott

Trump's new travel ban faces key test in appeals court

Trump's new travel ban faces key test in appeals court

Trump's call for a Muslim ban figures prominently in arguments against his second executive order blocking entry to the United States for people from six majority-Muslim countries. The issue is likely destined for the U.S. Supreme Court.

Based on the questions asked during the argument, a ruling could hinge on whether the appeals court agrees with a lower court judge that past statements by Trump about the need to prevent Muslims from entering the United States should be taken into account.

Trump rewrote the travel ban after the first version was stymied by the courts.

But critics said while the new executive order impacts fewer people, it remains a realization of Trump's promised Muslim ban and can not stand.

Three judges appointed by President Bill Clinton will hear the Trump administration's appeal of Hawaii's so-far successful challenge to the president's travel ban that targets six predominantly Muslim countries. Monday's hearing is over the Maryland ruling; the Trump administration's challenge to the Hawaii decision will be heard by the Ninth Circuit Court of Appeals in Seattle next Monday.

Lawyers for both sides argued their cases "en banc" on Monday afternoon, before a panel of all active and eligible judges of the Fourth Circuit Court of Appeals, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

The court in Richmond, Virginia, will examine a ruling that blocks the administration from suspending new visas for citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen. That usually happens a few times a year.

Then, on March 15, a three-judge panel at the San Francisco-based 9th U.S. Circuit Court of Appeals will review a decision from a Hawaii judge that halted not just the travel portion of the ban but also the section that barred refugees. Some of the 15 judges could be recused, so the list of those who will hear the case will be released Monday.

Judge Harvie Wilkinson III said in his dissent that the network presented "nothing more than bare speculation" that race impacted the city's decision.

Attorneys for the Justice Department are defending Trump's executive order before the 4th U.S. Circuit Court of Appeals. But President Barack Obama dramatically changed its makeup, pulling the 4th Circuit to the center.

Now, nine judges are Democratic appointees - including six from Obama - and five judges are Republican appointees.

Carl Tobias, a University of Richmond law school professor, said while the 4th Circuit has become moderate, it still tends to rule in favor of the government when it's convinced there's a compelling case of national security.

Judge Robert B. King said the case appears to hinge on whether the court considers Trump's statements or focuses exclusively on the text of the order, which is religiously neutral.

The ACLU and National Immigration Law Center brought the case on behalf of several organizations, as well as people who live in the USA and fear the executive order will prevent them from being reunited with family members from the banned countries. "Or is this a religious freedom case?"

Rabbi Michael Knopf of Bend the Arc Jewish Action said on Monday that people were there to assure the Muslim community that they oppose the ban imposed by President Donald Trump's administration and they want to invite all Americans of conscience to join them in saying they oppose any ban any time.

U.S. District Court Judge Theodore Chuang, who ruled against Trump in Maryland, said the Republican's comments are evidence that religion - rather than national security - was the primary motivation for the policy.

The government argues the text of the order does not mention any specific religion and is needed to protect the country against attacks. His lawyers say it's inappropriate for the court to rely on statements Trump made as a candidate "before he swore an oath to support and defend the Constitution".

The countries were chosen because they present terrorism risks and the ban applies to everyone in those countries regardless of religion, Wall said.

Omar Jadwat, an attorney for the American Civil Liberties Union, noted that Trump's call for a "total and complete shutdown" of Muslims entering the US remained on his campaign website even after he took office.

Now, nearly 100 days after the original travel ban, the government says the period of 90 days was reset when the administration issued the new order in March.

Like this: