This week, the Ninth Circuit Court of Appeals will once again take up the matter of President Trump’s executive order barring refugees and foreign visitors from six Middle Eastern countries – this time, the revised version that was made necessary when this same Seattle court blocked the first order. The court will be reviewing the new order, which was blocked by a Hawaiian judge shortly after it was issued.
The primary issue before the court will not be the text of the order, which even critics have concluded is in keeping with Trump’s executive authority. Rather, the question will be whether or not the court should take into consideration the president’s campaign statements, where he suggested on numerous occasions that the federal government should temporarily ban all Muslim immigration until better security systems are in place. That proposal, released in the wake of the San Bernardino shooting attack in December 2015, met considerable controversy at the time, but the government argues that Trump’s actual travel ban should not be conflated with that issue.
“The [lower] court’s reliance on such statements in the face of a religion-neutral order is fundamentally wrong,” said acting Solicitor General Jeffrey Wall.
The three-judge panel reviewing the most recent order will not be the same one that reviewed the first, and the revised order was carefully crafted to avoid the supposed constitutional pitfalls that sank the original. One country – Iraq – was removed from the initial list of banned countries, the date for the ban’s implementation was delayed to avoid the airport confusion that greeted the first one, and exemptions for Christian refugees were scrubbed from the order.
Judges for Hawaii, however, argue that the same religious discrimination inherent in the first order is present in the new one. “The president seeks to enact a thinly veiled Muslim ban,” said attorney Neal Katyal, “shorn of procedural protections and premised on the belief that those who practice Islam are a danger to our country.”
Katyal said the ban remains unconstitutional because it unfairly targets Muslims.
“The order is the embodiment of a policy of religious animus,” he said. “The government’s only real response is to ask the court to close its eyes to abundant evidence of discrimination.”
No, the government’s response has been to ask the court to LOOK ONLY AT THE FACTS OF THE CASE. Not what Trump said a year and a half ago when he was running for the Republican nomination, not at conversations he had with Rudy Giuliani, and not at the “feelings” might be hurt by this order. Those issues have their place in the political arena, not the legal one. Hawaii is essentially arguing that because Trump once called for a Muslim ban, any policies he might enact that have ANYTHING to do with Muslim-majority countries are therefore unconstitutional, and that’s absolutely ridiculous on its face.