Federal judges on the Ninth Circuit strictly scrutinized Trump’s controversial campaign comments on Monday
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The latest battle in the legal war over President Donald Trump’s controversial travel ban was broadcast live on cable news stations on Monday. A three-judge panel of the Ninth U. S. Circuit Court of Appeals expressed skepticism about some arguments against the ban, but also pressed the lawyer defending Trump’s suspended policy about whether it discriminates against Muslims.
The Ninth Circuit originally blocked Trump’s first travel ban on due process grounds, while the revised version of the ban is currently before a different panel. On Monday the court reviewed the president’s appeal of a March decision that put a nationwide hold on his executive order barring entry or visas into the U. S. for nationals of Iran, Syria, Sudan, Libya, Somalia and Yemen for 90 days and blocking all refugees for 120 days. (The revised order removed Iraq from the list of banned nations, makes no mention of religion, exempts green-card holders and allows for exceptions in certain cases.)
U. S. District Judge Derrick Watson in Hawaii blocked the revised ban in March, citing Trump’s campaign statements calling for a complete and total shutdown of all travel into the U. S. by Muslims. Watson found that the travel ban likely violated the constitution’s Establishment Clause by discriminating against Muslims.
“We shouldn’ t start down the road of psychoanalyzing what people meant on the campaign trail, ” Acting Solicitor General Jeffrey Wall argued in a Seattle court on Monday. Wall told the judges that they need only determine whether there was a “rational basis” for the president’s travel ban, a lower bar of scrutiny than for an executive order impacting constitutionally protected rights such as freedom of religion.
“This order is aimed at aliens abroad, who themselves don’ t have constitutional rights, ” Wall argued. He said the judges should focus on official, unequivocal statements from the White House, not the campaign trail, when evaluating its intent.
But Judge Richard Paez noted that the order that interned Japanese-Americans during World War II was neutrally worded. “There was no reference to Japanese in that executive order, ” he said, “and look what happened.”
