RICHMOND, Va. — A panel of judges repeatedly questioned President Donald Trump’s lawyer Monday over the intent of the second iteration of a blocked travel ban, challenging the acting solicitor general to answer for the administration’s rhetoric for what it contends is not a Muslim ban.
Acting Solicitor General Jeff Wall argued Monday to the more than dozen judges present in Monday’s hearing here in Richmond that too much emphasis is being placed on rhetoric from a divisive campaign that ended months ago. Trump infamously proposed a Muslim ban as a candidate for president in December 2015, calling for a “total and complete shutdown” of Muslims in a statement that wasn’t removed from his campaign website until earlier Monday.
That Trump has since been sworn in as president, Wall said, “should color the way that we reach back and look at previous statements before he was an elected official, before he faced the demands of government, before he consulted with an administration and took an oath that allowed him to occupy the nation’s highest office.”
“And even if you disagreed with me over all of that … I still think the statements are ambiguous, and out of respect and the presumption of regularity, I think what’d you say is, ‘We don’t give the president the least charitable interpretation of what he said,’” Wall continued. “’We give it the most reasonable interpretation in order to render the executive order lawful so that it shouldn’t drift in and out of constitutionality based on what we think was in the head of the president who issued it.’”
After weeks of relative quiet over Trump’s largely-blocked travel ban executive order, the issue returned Monday at an unusual federal appeals court argument in Richmond.
Thirteen judges took part in the 4th Circuit Court of Appeals session considering the government’s request to overturn a ruling preventing the Trump administration from implementing the president’s plan to suspend issuance of visas in six majority-Muslim countries as part of what the president billed as an anti-terrorism measure.
While the 4th Circuit has a total of 15 active judges, two did not take part in Monday’s argument: Ronald Reagan appointee Harvie Wilkinson and George W. Bush appointee Allyson Duncan.
A court spokesman did not immediately respond to a request to explain the recusals. However, Wall is Wilkinson’s son-in-law.
The reason for Duncan’s recusal, not widely expected, was less clear. A message left at Duncan’s Raleigh, North Carolina, chambers was not immediately returned. But Duncan is a member of the board of trustees of Duke University, which joined an amicus brief a group of universities filed with the 4th Circuit in late March urging the court to uphold the injunction against the revised travel ban.
Judge James Wynn’s pointed questioning prompted Wall to concede the unprecedented nature of someone ascending to the presidency after essentially telling Americans he didn’t want Muslims in the U.S. and signing an order to prevent just that, only to revise it after it was blocked by courts.
“But the effect, and even the statements … that are made — ‘Well, you know what this means’ or ‘this is effectively the same thing’ — whether it’s the president, press secretary or whomever there, have we had that in history?” Wynn asked.
“Candidates talk about things on the campaign trail all the time, and no, we haven’t had a lot of litigation over that because the right legal standards here don’t allow for inquiries into subjective motivations,” Wall said.
But the “reasonable” interpretation of “we know what this means,” Wall suggested, was that the president was talking about “countries and groups that may intend to do us harm.”
“And certainly in the face of ambiguity over what the commander in chief and head of the executive branch meant by an offhand, six-word statement, this court ought to, I think, take that statement not at its least reasonable, not at its least permissible, but in a way that was in accord with what the president and his advisers had been talking about for months, which is terrorism,” Wall added.
U.S. District Court Judge Theodore Chuang, who sits in Greenbelt, Maryland, sided with critics in March who contend that the revised travel ban order Trump issued earlier that month is a watered-down but still-unconstitutional version of the Muslim ban Trump proposed during the presidential campaign.
The 4th Circuit arguments come just a week before a 9th Circuit panel sitting in Seattle is set to review a similar but broader injunction issued by a federal judge in Hawaii at about the same time. That order from U.S. District Court Judge Derrick Watson bars the government from enforcing the visa ban as well as other provisions in Trump’s directive, including a halt of refugee admissions from around the globe.
Most appeals court cases are heard and decided by a three-judge panel. So-called en banc courts, consisting in the 4th Circuit of the court’s full bench of active judges, are rare. En banc courts convened before a three-judge panel has rendered a decision are rarer still, but that is what was playing out in Richmond on Monday.
Trump issued his first travel ban order just a week after he took office in January. The directive, which resulted in the cancellation of tens of thousands of visas held by citizens of seven majority-Muslim countries, triggered protests at international airports across the U.S. and led to hundreds of incoming travelers being detained.
About a half-dozen federal judges across the country issued orders blocking aspects of Trump’s initial directive. The Justice Department appealed the broadest injunction, issued by a judge in Seattle, to the 9th Circuit. However, a three-judge 9th Circuit panel turned down the federal government’s request to reinstate the travel ban.
Despite Trump’s vows to take the issue to the Supreme Court, the administration eventually dropped that appeal and decided to redraft the initial order. Trump signed a new version on March 6 that exempted existing visa holders and scratched Iraq from the list of countries subject to the visa ban, leaving it to apply to Iran, Libya, Somalia, Sudan, Syria and Yemen. He also deleted a controversial provision that appeared intended to give Christians priority in refugee admissions from largely Muslim countries.
Despite the changes, the key provisions never took effect as a result of a fresh pair of injunctions issued in mid-March.
The litigation has been punctuated by a series of public attacks Trump has delivered—via Twitter and orally—against the judges involved. He’s questioned their legitimacy and warned that they will be seen as responsible if terrorists enter the country and carry out a strike.
The president’s salvos at the judges have drawn criticism even from some who agree with Trump’s travel ban, although others have said there’s a long historical tradition of presidents inveighing against judges who block the administration’s agenda.
The 4th Circuit was once considered one of the country’s most conservative appeals courts, but is now viewed as one of the more liberal courts, at least on some issues. The court’s active bench includes nine Democratic-appointed judges, five GOP-appointed judges and one jurist—Chief Judge Roger Gregory—who was nominated and recess appointed by President Bill Clinton and re-nominated and confirmed under President George W. Bush.
The Maryland suit was brought by refugee-aid groups International Refugee Assistance Program and HIAS, as well as several individuals who claimed they would be personally impacted by Trump’s directives. Omar Jadwat of the American Civil Liberties Union is set to argue Monday for the travel ban opponents.
Even if the 4th Circuit quickly rules in the government’s favor or decides to stay the lower court’s injunction, the Trump administration would still be unable to move forward with the key parts of the revised travel ban directive because of the Hawaii judge’s ruling.
In addition, even if both injunctions were lifted, it’s possible judges elsewhere might step in to block the executive order. A judge in Washington, D.C., is already mulling such requests in two suits brought by Iranian-Americans citing the impact on their community.
Due to the overlapping litigation and the importance of the issue, the case seems destined for the Supreme Court. The Trump administration may find some more traction there now with the confirmation of Trump’s pick, Justice Neil Gorsuch, to fill the court’s seat that had been open since last year.
However, even with Gorsuch, the administration could face an uphill battle on the travel ban at the Supreme Court. The court’s four Democratic-appointed justices seem unlikely to bless the measure’s legality and Republican-appointed Justice Anthony Kennedy has sometimes joined his liberal colleagues on decisions involving immigration.