The U.S. 9th Circuit Court of Appeals is again hearing arguments about President Donald Trump's so-called "travel ban," focusing Monday on campaign promises the then-GOP candidate made to bar Muslims from entering the United States.
Yet Trump's continued inclusion of a 90-day ban on all foreign nationals from six Muslim-majority countries and the 120-day ban on all refugees in the revised travel ban led to fresh legal challenges from the state of Hawaii and an American imam that a new panel of 9th Circuit judges must now resolve.
"The executive order sets out national security justifications, but how is a court to know whether in fact it's a Muslim ban in the guise of national security justification?" asked Judge Ronald Gould.
Acting U.S. Solicitor General Jeffrey Wall, arguing on behalf of the Trump administration, said that the order from the 1940s, which is now viewed as a low point in U.S. civil rights history, would not be constitutional.
Now, three judges from the U.S. 9th Circuit Court of Appeals are considering Trump's challenge of that injunction.
Protesters wave signs and chant during a demonstration against President Donald Trump's revised travel ban, Monday, May 15, 2017, outside a federal courthouse in Seattle.
Wall responded, "Over time, the president clarified that what he was talking about was Islamic terrorist groups in countries that have sheltered or sponsored them". But he also said he hasn't read the text of Roosevelt's order.
The hearing in Seattle before a panel of the USA 9th Circuit Court of Appeals, scheduled for one hour starting at 9:30 a.m., will be broadcast live on C-SPAN and streamed from the court's website.
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.More news: Tuesday's Stanley Cup Playoffs betting preview: Ducks at Predators
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Hawaii's case, similar to Washington's, argues constitutional violations of the First Amendment's Establishment Clause that says the federal government can not prefer one religion over another.
Katyal said he stands by those arguments, but that doesn't mean the president's authority is unbounded. Is there any justification for that part of the order, he asked Katyal?
White House spokesman Sean Spicer told reporters on Monday that the administration was confident the executive order would be upheld by the appeals court.
A crowd rallied in protest outside an appeals court in the western city of Seattle, where a panel of federal judges was weighing the legality of the contested immigration order - which has twice been blocked by the courts since January. Wall said that was clearly what prior Supreme Court precedent on courts' review of immigration decisions required. But the judge wondered whether Trump is forever forbidden from adopting an executive order along the lines of his travel ban.
The three judges - all appointed by former President Bill Clinton - peppered Wall and Katyal with pointed questions. Mr Wall made a case that only "unequivocal" statements by "the president and members of the cabinet" made in their "official capacity"-rather than on the campaign trail-qualify as evidence that Mr Trump was acting in bad faith and in violation of the First Amendment's bar on establishing religion".
Mr Wall opened with his central point: "Both the constitution and acts of Congress give the president of the United States broad authority to prevent aliens overseas from entering this country when he deems it in the nation's interest".
In his ruling issuing the nationwide injunction, Judge Watson wrote that "a reasonable, objective observer - enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance - would conclude that the Executive Order was issued with a goal to disfavor a particular religion". Mr Katyal warned that upholding the travel ban would mean "defer [ring] to the president in a way that history teaches us is very unsafe".
"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. The court heard arguments for two hours last week, but no word yet on when it might rule. In his dissent from a 1972 case challenging the denial of a visa to a Belgian journalist who described himself as a Marxist, Wall noted, Justice Thurgood Marshall had suggested that courts should look, even if only briefly, at the rationale underlying the policy at issue in that case, but the majority of the Supreme Court declined to do so.