Three judges from the 9th U.S. Circuit Court of Appeals heard arguments in Seattle on Monday morning, after the government challenged a decision by a judge in Hawaii that paused the most substantive parts of a revised executive order issued by President Donald Trump in March.
White House press secretary Sean Spicer expressed confidence that President Trump's travel ban order will be upheld by an appeals court. "These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the executive order, and, in many cases, made by the executive himself, betray the executive order's stated secular objective".
The December 2015 press release remained on Trump's campaign website up until early last week.
"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.
Instead of appealing to the US Supreme Court, the president issued a revised version of the ban to make it more defendable in courts.
Just as judges in Richmond, VA, a week ago seemed somewhat anxious about making a sweeping constitutional decision that could curb presidential authority too greatly, a panel of judges in Seattle showed some of the same concern.
They asked an administration lawyer about what one judge called Trump's "profound" campaign statements calling for a ban on Muslims entering the United States.
Last week the 4th U.S. Circuit Court of Appeals in Virginia reviewed a Maryland judge's ruling that blocked the 90-day entry restrictions.
A federal appeals court judge is questioning a lawyer for Hawaii about past cases in which he argued that the president has broad authority over immigration matters.
Judge Michael Hawkins asked, "Did the president ever disavow his campaign remarks?"
The government rescinded a January version of the order, replacing it after lawsuits across the country alleging what was then a seven-country ban on travel disproportionately targeted Muslims. One of the provisions would have imposed a temporary travel ban blocking nationals from six Muslim-majority countries from entering the United States, with exceptions for green card holders, among others.
A Trump administration lawyer says the president's travel ban is nothing like the internment of Japanese citizens during World War II.
CORNISH: People have been talking about this case as though it's going to go to the Supreme Court, but what happens in the meantime?
Wall suggested that Supreme Court precedent should marshal against the judges "second-guessing" the President's "national security determinations that they're sort of ill-equipped to do".
A federal judge in Hawaii blocked the travel ban in March, later extending his order as a preliminary injunction.
Acting U.S. Solicitor General Jeffrey Wall told the court that Trump's campaign statements were irrelevant because he later clarified as president that he was aiming at terrorist groups. Judge Paez asked Katyal. Watson found that the travel ban likely violated the constitution's Establishment Clause by discriminating against Muslims.
The arguments were carried live on some cable news channels. Because Congress has already adopted a scheme regarding when people may be excluded from the country for terror-related activities, the president can not override that with his travel ban, they argue.
Acting Solicitor General Jeffrey Wall urged the judges not to delve into a "wide ranging inquiry into subjective motivation" in considering Trump's past comments on Muslims. "Does that mean that the President is forever barred from issuing an executive order along these lines?" Chuang only blocked the six-nation travel ban, saying it wasn't clear that the suspension of the refugee program was similarly motivated by religious bias. The three judge panel in that case upheld the decision by Seattle U.S. District Judge James Robart. Because of how the courts chose to proceed, a full slate of 13 judges heard the 4th Circuit arguments last week, while just three, all appointees of President Bill Clinton, will consider the case in Seattle.