SCOTUSblog by Amy Howe 5/16/2017
Ninth Circuit hears oral argument on Trump travel ban
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit heard oral argument yesterday in a challenge to the executive order signed by President Donald Trump on March 6. Colloquially known as the “travel ban,” the order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as well as the admission of refugees into the United States. Yesterday’s oral argument came just one week after the full U.S. Court of Appeals for the 4th Circuit heard oral argument in a similar challenge; in both cases, federal trial courts had blocked the government from implementing the order. Last week’s argument suggested that there was a majority on the 4th Circuit to uphold the Maryland judge’s order putting the ban on hold; yesterday’s argument before the 9th Circuit panel could lead to a comparable result, although perhaps on a different theory than that relied on by the Hawaii trial court and also with a narrower scope.
The case before the 9th Circuit yesterday was filed by the state of Hawaii and Ismail Elshikh, a U.S. citizen of Egyptian descent who serves as the head of a Hawaii mosque and is hoping to bring his mother-in-law, a Syrian national, to the United States. The challengers contend that the president’s order violates both the Constitution (by, among other things, favoring one religion over another) and federal laws governing immigration, which allow the president to suspend the entry of non-citizens into the country when he finds that their entry would be detrimental to the interests of the United States.
Arguing on behalf of the United States, as he did in the 4th Circuit, Acting Solicitor General Jeffrey Wall told the court that both the Constitution and federal law give the president broad authority to prevent non-citizens from entering the country when he deems it necessary to protect the United States. Wall’s opponent, former Acting Solicitor General Neal Katyal, countered that a ruling for the Trump administration would allow the president to take a “magic eraser to the entire” body of federal laws. By contrast, Katyal contended, a ruling for the challengers would “preserve a status quo that existed for decades” while at the same time leaving the president’s powers intact.
The three judges on the panel – Senior Judge Michael Hawkins, Judge Ronald Gould and Judge Richard Paez – devoted a significant portion of yesterday’s oral argument to an issue that had also troubled the 4th Circuit last week: What role, if any, should the president’s campaign statements about banning the entry of Muslims into the United States play in the court’s evaluation of the March 6 executive order?
Gould asked Wall how the court should determine whether the executive order is a “Muslim ban” disguised as a policy intended to promote national security. Wall responded that the question was the “nub” of the case. 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. It was enough, the court ruled, that the policy had a legitimate purpose on its face. And in any event, Wall emphasized, the president subsequently clarified that his statements referred to Muslim terrorist groups and the countries that shelter them – not to all Muslims generally.
More:
http://www.scotusblog.com/2017/05/ninth-circuit-hears-oral-argument-trump-travel-ban/#more-255799
