Another federal appeals court panel took up President Donald Trump’s revised travel ban executive order Monday as the administration seeks to revive the controversial directive that was largely blocked by judges two months ago.
At a session in Seattle, three judges of the 9th Circuit Court of Appeals heard arguments on a Justice Department request to overturn a Hawaii-based federal judge’s order barring the administration from carrying out a 90-day halt on issuing visas to citizens of six majority-Muslim countries and a 120-day suspension of refugee admissions from around the globe.
Trump’s campaign-trail proposal to ban Muslims from entering the United States was again central to the discussion on Monday. Critics have pointed to his rhetoric to argue that his travel ban order was driven by anti-Muslim sentiment.
Judge Michael Daly Hawkins asked if Trump had ever renounced the proposal to ban Muslims from entering the country.
"Has the president ever disavowed his statements?….Has he ever said anything approaching that?" Hawkins asked.
Acting Solicitor General Jeffrey Wall insisted Trump had, though he pointed more to an evolution of rhetoric Trump used during the campaign than to any explicit renunciation of his calls for a Muslim ban.
"He has said several things approaching that," Wall insisted. "Over time, the president clarified that what he was talking about are Islamic terrorist groups and the countries that sponsor them."
However, a lawyer for the plaintiffs in the case—the state of Hawaii and a local imam, Ismail El-Sheikh—said Wall couldn’t point to a specific renunciation statement because Trump never has said he’s given up on the idea of a Muslim ban.
"He could not actually point to any disavowal…because the truth is there is no such statement," attorney Neal Katyal said.
Another appeals court, the Richmond, Va.-based 4th Circuit, heard arguments last week on a Maryland-based judge’s order blocking solely the six-country visa ban. The 4th Circuit took the unusual step of skipping the typical three-judge panel and having the case argued before the court’s full bench. Thirteen judges heard the appeal, with two jurists recused.
On the same day that appeal was argued, Trump’s campaign website finally removed the press statement in which he had called explicitly for a Muslim ban.
Katyal noted to the 9th Circuit judges on Monday that the release "just happened to disappear just moments before the 4th Circuit argument."
Even if the appeals courts were to clear away both injunctions currently in place, there are cases pending in Washington, D.C. and elsewhere where new blocks could be issued, meaning the travel ban executive order seems certain to wind up at the Supreme Court.