Explaining Trump’s travel ban appeals court arguments

JUDY WOODRUFF: President Trump's travel ban got its first federal appeals court review today. The arguments mark the biggest test yet for the president's revised executive order to suspend travel to the U.S. for people from six majority-Muslim countries.

William Brangham has that story.

WILLIAM BRANGHAM: At the center of today's arguments before the Fourth Circuit is whether the president's second executive order is motivated by national security concerns, or whether it discriminates against Muslims, which would be unconstitutional.

Among other issues, the judges will also decide whether the president's own words about Muslims can be used against him.

Here's an example from a campaign rally in December of 2015.

PRESIDENT DONALD TRUMP: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what the hell is going on.

(CHEERING AND APPLAUSE)

WILLIAM BRANGHAM: To go through today's arguments, I'm joined by Marcia Coyle, chief Washington correspondent for The National Law Journal, and a NewsHour regular.

Welcome back.

MARCIA COYLE, The National Law Journal: Thank you.

WILLIAM BRANGHAM: So, you heard what I said at the introduction. Is that roughly the contours of this? The president is arguing, this was all about national security. His critics are saying, no, it's religious discrimination.

MARCIA COYLE: In fact, not just his critics, but the lower federal district court in this particular case found that the primary purpose of the order wasn't national security, that was a secondary purpose, that this was a Muslim ban and that there was a violation of the First Amendment's Establishment Clause.

So, that is what we — as we go into the federal appellate court here today, the argument breaks down in two ways. The government is still going to argue that this is national security, and it's relying heavily on a Supreme Court case from a number of years back in which the court said, if the president has a legitimate and bona fide reason for his or her decision about how to permit or disallow the entry of aliens into this country, that's it, that's sufficient.

And the government's lawyer said that there is a legitimate and bona fide reason here, national security, and so, court, your job ends basically there.

WILLIAM BRANGHAM: So, let's listen to one of these clips.

This is Judge Keenan having a discussion with Jeffrey Wall, who is representing the Trump administration.

JUDGE BARBARA MILANO KEENAN, Fourth Circuit Court of Appeals: What in the text — I'm looking for it.

What in the text of Executive Order Number 2 supports the conclusion that these aliens from these countries, these 82 million people, would be detrimental to the interests of the United States?

JEFFREY WALL, Acting United States Solicitor General: I don't think what the president was saying was, I know them all to be dangerous.

He was saying, I'm not certain here. What he said is, I find that it would be detrimental to letting people from countries we know to be dangerous, that have deteriorated over time, until I have had a chance, working with my Cabinet officials, to assess the vetting procedures for those countries.

He said, it would be detrimental in the face of that uncertainty. That is a reasonable finding, one that an executive branch official could draw. I think there is no question that it should survive rational basis review.

WILLIAM BRANGHAM: So, Marcia, that's the argument the administration has been making all along, that the president has authority and that this is in the interest of the country.

MARCIA COYLE: That's right. And the government doesn't see any violation of the Establishment Clause.

And, of course, as we all know, the Establishment Clause doesn't permit the government to disfavor religion. The government's attorney today said that there was nothing in this order that had anything to do with religion, and that the president, even though he had made earlier statements about a Muslim ban, had clarified his position later after he took the oath of office to insist that he's talking about terrorism and territories, not religion.

WILLIAM BRANGHAM: In fact, there was a very interesting moment today in the hearing where a judge asked, let's just say the president had taken back some of those comments about Muslims. Would this be allowable?

Let's listen to that clip.

JUDGE ROBERT KING, Fourth Circuit Court of Appeals: The president repudiated his statements in campaign and post-election about the Muslim ban. What if he repudiated them all?

OMAR JADWAT, ACLU: I think that would be significant, Your Honor. It would be a significant fact. I don't know whether …

JUDGE DENNIS SHEDD, Fourth Circuit Court of Appeals: Would that change the result?

OMAR JADWAT: I think a simple repudiation might not — no, wouldn't change the result.

JUDGE DENNIS SHEDD: Let me follow up, then. What if he says he's sorry every day for a year?

(LAUGHTER)

JUDGE DENNIS SHEDD: Would that do it for you?

OMAR JADWAT: Here's the issue, Your Honor, is that what the Establishment Clause prohibits is targeting and denigrating a religion. At a minimum, that's what it prohibits. And the question is, would reasonable people see what he was doing in total as achieving that effect?

JUDGE DENNIS SHEDD: So, you say reasonable people would say he doesn't really mean it when he says he's sorry?

OMAR JADWAT: Your Honor, I think it's possible that saying sorry is not enough.

MARCIA COYLE: This, again, is an exchange between judges, but, this time, with the lawyer for the challengers to the order, the ACLU's lawyer.

And he is saying, basically, look, you have to look at the evidence in this particular case. The ACLU believes that this wasn't a national security purpose, that this was a Muslim ban, and, because of that, a violation of the Establishment Clause.

So, the ACLU's lawyer told the judges, there are really three categories of evidence you should be looking at here. First, there is the order on its face. It's not facially legitimate, he argued, because, even though it names just six countries, there are other countries that have been associated and found to be associated with terrorism by the United States that are not on that list. This is just Muslim countries.

Secondly, there are the president's statements. And as the ACLU lawyer said, sometimes, saying you're sorry is not enough. These statements, he claims, continued after the president took the oath of office. So, it's not just campaign statements.

And then the final category of evidence, the lawyer said, had to do with some reports that were leaked or released by the Department of Homeland Security that basically said that the order itself wouldn't prevent terrorism in the United States.

WILLIAM BRANGHAM: How unusual is this, Marcia, to have the president's own words, the words of his own administration come back to be used as evidence against them in court?

MARCIA COYLE: Well, I think it's quite unusual. And it obviously is an issue of contention among the various judges that have had to deal with this executive order.

And I think, going forward, whoever loses either in this particular case or in a case in Hawaii that will be heard in another week, and there are many other challenges pending around the country, will take the case to the Supreme Court.

And there, the Supreme Court will again have to deal with the relevance and weight of the president's statements. Ultimately, I think it will be the Supreme Court that will have to resolve this tension. Is this just to be judged on the basis of national security, or does the religion clause jurisprudence come in as well?

WILLIAM BRANGHAM: Marcia Coyle, as always, thank you so much.

MARCIA COYLE: My pleasure.

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