President Donald Trump’s past statements about Muslims — and whether they could be used against him — were the focus of federal judges in Seattle on Monday weighing whether his revised travel ban may violate the Constitution.
A three-judge panel for the Ninth Circuit Court of Appeals questioned lawyers from both sides about the statements, as they considered whether to lift one of the two court orders currently keeping the revised travel ban on hold.
The administration’s lawyer, acting U.S. Solicitor General Jeffrey Wall, argued that the key provisions in the revised executive order do not mention religion, and that some of Trump’s statements about immigration restrictions during his presidential campaign did not target Muslims broadly.
“Over time, the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them,” Wall said.
The 9th U.S. Circuit Court of Appeals hears arguments over Trump’s revised travel ban. Watch live in the player above.
But Neal Katyal, who is representing Hawaii in this lawsuit against the travel ban, used part of his presentation to rattle off several instances during the campaign when Trump did make blanket statements about Muslims. He pointed to, among others, Trump’s statement in December 2015 calling for “a total and complete shutdown of Muslims entering the United States.”
“The question is: What would an objective observer view these statements as?” Katyal said. “It would view them as an establishment of a disfavored religion, of Islam.”
The Ninth Circuit panel is tasked with deciding whether to lift a court order, put in place by a lower federal judge in March, that blocks the Trump administration from implementing two key provisions in the revised executive order. One of the provisions would have imposed a temporary travel ban blocking nationals from six Muslim-majority countries from entering the United States, with exceptions for green card holders, among others. The other provision would have temporarily frozen the federal government’s refugee admissions program, and lowered the cap on U.S. refugee admissions through this fiscal year.
The Ninth Circuit ruled against the Trump administration’s original travel ban back in February, keeping a lower court’s nationwide injunction against it in place.
Whichever side loses at the Ninth Circuit in Monday’s case will have the option of appealing to the Supreme Court.
Monday’s hearing was the second major legal test for the revised travel ban in the span of a week.
A different federal appeals court — the Fourth Circuit Court of Appeals, based in Richmond — heard an appeal on May 8 over a separate court order blocking just the six-country travel ban. A ruling is still pending in that case.
Meanwhile, the White House said it is still confident that the revised executive order will ultimately survive the legal challenges. “The executive order is fully lawful and will be upheld,” Press Secretary Sean Spicer told reporters on Monday. “We fully believe that.”