Appeals Court Reviews Decision Blocking Trump's Travel Ban

May 15, 2017
Originally published on May 15, 2017 4:40 pm
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AUDIE CORNISH, HOST:

Lawyers for the Department of Justice were back in court today defending President Trump's revised travel ban. His executive order would temporarily suspend the U.S. refugee program and halt new visas for nationals of six mostly Muslim countries. For the second time in two weeks, a federal appeals court heard arguments about whether the order discriminates against Muslims. This time it was the 9th Circuit Court of Appeals sitting in Seattle. NPR's Joel Rose was there. He joins us now. Joel, can you describe what happened in court today?

JOEL ROSE, BYLINE: Sure, Audie. Judges heard from both sides in an hour-long hearing. The administration is asking this court to lift an injunction by a lower court judge in Hawaii. That's the ruling that put the revised travel ban on hold back in March. And from the very beginning today the judges had tough questions for the government's lawyer. A lot of them had to do with what the president has said on this issue and whether or not the judges should consider that in context. That led to one of the most pointed interactions, when Judge Michael Hawkins asked this question.

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MICHAEL HAWKINS: Has the president ever disavowed his campaign statements? Has he ever stood up and said, I said before I wanted to ban all members of the Islamic faith from entering the United States of America, I was wrong, I'm now addressing it simply to security needs?

ROSE: A lawyer for the administration said President Trump was a private citizen - he was candidate Trump - when he said those things, he was not making official policy when he made those statements, and that the president has since clarified his position since he took office. Let's listen to Acting Solicitor General Jeffrey Wall.

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JEFFREY WALL: Over time, the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them.

CORNISH: So what did the plaintiffs have to say?

ROSE: Well, they disputed that Trump's campaign rhetoric is irrelevant here. They pointed out that the Muslim ban was on his campaign website until just last week. And even today, White House Press Secretary Sean Spicer was asked if the president would repudiate his campaign rhetoric now. Spicer did not answer directly. He just said that this order is legal. The lawyer for the state of Hawaii, which brought this case, says the order is essentially that Muslim ban that President Trump and his advisers have talked about. Let's listen to their lawyer, Neal Katyal.

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NEAL KATYAL: This is unprecedented. We have not seen anything like this in our lifetimes in which a president is establishing a disfavored religion.

CORNISH: Now, the legal precedents have also been a big topic of debate in this case. Legal scholars have drawn some parallels to other events in U.S. history. Has that actually come up in court, though?

ROSE: Yes, and in particular the case of Korematsu v. United States. That's the executive order that led - or that case concerns the executive order that led to the Japanese internment camps during World War II. And one of the judges in today's case asked the administration's lawyer about that. The judge asked whether the Supreme Court, which upheld that order, reached the correct decision. And the judge pointed out that that order doesn't actually mention Japanese-Americans by name in the order at all.

And that's similar to the argument the government is making in this case today. It said that the word Muslim does not appear in the travel ban executive order. That said, the governor - the government's lawyer vehemently denied this comparison and said that these are very different cases. But it's clear that the judges are taking a long view about this case and how history might view it.

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?

ROSE: Well, first we need some rulings from the appeals courts. Today's case was heard by three judges who were all appointed by President Bill Clinton, so they could move relatively quickly. On the other coast, the 4th Circuit Court of Appeals sitting in Virginia heard a similar case last week. And they will probably move more slowly because that case was heard by 13 judges appointed by administrations both Republican and Democratic. But there's no official timetable yet from either court.

CORNISH: That's NPR's Joel Rose. Joel, thank you.

ROSE: You're welcome. Transcript provided by NPR, Copyright NPR.