SEATTLE — Federal judges on Monday peppered a lawyer for President Donald Trump with questions about whether the administration’s travel ban discriminates against Muslims and zeroed in on the president’s campaign statements, the second time in a week the rhetoric has faced judicial scrutiny.
"How is a court to know if it’s in fact a Muslim ban in the guise of national security justification,” asked Circuit Judge Ronald Gould, one of three from the 9th Circuit Court of Appeals considering the case.
"Has the President ever disavowed his campaign statements?" Circuit Judge Michael Hawkins later asked.
Acting Solicitor General Jeffrey Wall, who is defending the travel ban that “over time, the president clarified that what he was talking about was Islamic terrorist groups and the countries that sponsor or shelter them.”
Wall argued that the executive order halting travel from six majority Muslim nations doesn’t say anything about religion, and neither the state of Hawaii nor an imam from that state who wants his mother-in-law to visit has standing to sue.
“This order is aimed at aliens abroad, who themselves don’t have constitutional rights,” Wall said during the hearing broadcast live on C-Span and other news stations.
"What the President did here falls squarely within his constitutional and statutory authority," Wall also said.
Former Acting Solicitor General Neal Katyal, who represented Hawaii, scoffed at the Department of Justice's argument and called the President's actions a "repeated pattern" that continued post election.
"We wouldn’t be standing here if it was just campaign statements alone," said Katyal.
Hawaii's case, similar to Washington's, argues constitutional violations of the First Amendment's Establishment Clause that says the federal government cannot prefer one religion over another.
The 9th Circuit Court of Appeals panel must decide whether to uphold the decision made by a federal Judge in Hawaii that stopped the President's revised executive order taking effect.
The revised order temporarily suspend the nation’s refugee program and temporarily bars new visas for citizens of six predominately Muslim countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.
Dozens of advocates for refugees and immigrants rallied outside the federal courthouse in Seattle, some carrying “No Ban, No Wall” signs.
"We don’t know what the result is going to be, but what I see happening in this process is that the system is working," said Hawaii's Attorney General Doug Chin following the hearing.
Chin credited Washington state's case for paving the way and also noted the significance of the hearing taking place at the William K. Nakamura Courthouse in Seattle, named after a Medal of Honor recipient who was interned along with his family during World War II.
"What’s happening today—it’s not internment camps; it isn’t, but it’s a chilling reminder of what could happen if we allow executive orders like this to go forward," said Chin.
There's not estimated timeline on when the 9th Circuit Court of Appeals could issue a decision in the case. Washington state's case was decided on an expedited basis in just days. The three judge panel in that case upheld the decision by Seattle U.S. District Judge James Robart.
A ruling in Hawaii's case is expected to take longer. However, Attorney General Chin believes the Washington case set precedent.
"There were a lot of guidelines at the very minimum that came from the Washington panel that I think is going to be precedent for the Hawaii case who heard the case this morning," said Chin.
Washington Solicitor General Noah Purcell attended the court hearing to observe. While Western Washington U.S. District court has not yet ruled on what will happen next in Washington state's case, Purcell said the Attorney General's Office plans to move forward with the discovery process.
Last week, judges on the 4th Circuit Court of Appeals heard arguments over whether to affirm a Maryland judge’s decision putting the ban on ice. They also questioned whether they could consider Trump’s campaign statements, with one judge asking if there was anything other than “willful blindness” that would prevent them from doing so.
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