A full panel of judges on the Richmond-based 4th Circuit Court of Appeals wrestled Friday with whether to strike down the Maryland district court order that partially blocked the third version of President Trump‘s travel ban nationwide.
At least seven of the 13 judges had a hard time accepting the administration’s argument that the president’s Sept. 24 proclamation is not a Muslim ban given Trump’s retweets last week of anti-Muslim videos originally posted by a fringe right-wing British group.
Like the proclamation, Judge Pamela Harris, an Obama appointee, noted the tweets are official statements signed by the president.
“Although I agree people always see things differently, some of those Nov. 29 statement you know, even with deference, construing them in a light more favorable to the president, it’s a little tricky to find the national security rationale in those,” she said.
Deputy Assistant Attorney General Hashim Mooppan argued the most recent retweets aren’t even about the proclamation and are irrelevant.
Judge Barbara Keenan, another Obama appointee, pressed him on that argument.
“So you’re suggesting, counsel, that while the president may be showing anti-Muslim bias in his tweets that cannot be taken over into the content of the proclamation?” she asked. “The proclamation has to be viewed based on its language and not any manifested anti-Muslim bias as evidence by the tweets. Is that correct?”
The arguments Friday marked the second time this week the Trump administration was in court to defend Trump’s targeted restrictions on people from Chad, Iran, Libya, Somalia, Syria and Yemem. Trump also put restrictions on Venezuelan officials and immigrants from North Korea, but those are not at issue in this case.
The administration is appealing a Maryland District Court judge’s preliminary injunction, which stopped the president from banning nationals from the six majority Muslim countries that have a bona fide relationship with a person or entity in the United States.
Mooppan argued the travel restrictions mapped out in the proclamation are based on recommendations from the federal agencies, which found after a nationwide review that these eight countries had inadequate information sharing practices.
But Judge Robert King, a Clinton appointee, said the court hasn’t seen the report the recommendations are based on.
Cecillia Wang, deputy legal director for the American Civil Liberties Union who argued on behalf of the International Refugee Assistance Project and other groups challenging the ban, said Trump has not made the required national security finding under the Immigration and Nationality Act to justify banning 150 million immigrants from entering the country.
But Judge Paul Niemeyer, a George H.W. Bush appointee, notes the first paragraph of the proclamation says entry of these individuals would be detrimental to the United States.
Judge Steven Agee, a George W. Bush appointee, asked Wang why President Trump’s proclamation is invalid but the proclamation President Reagan issued banning Cubans from entering the country and President Carter’s proclamation banning Iranians were not.
“I don’t think any nationality bans are valid, but you don’t have to buy that in order to accept our statutory argument,” she said. “The distinction is that with Iran and Cuba the presidents were acting in response to exigent circumstances with a bilateral crisis.”
In issuing the new restrictions, Wang argued the president wanted to disfavor Islam and directed his lower-level officials to use nationality as a proxy for religion.
But Judge Dennis Shedd, a George H.W. Bush appointee, said the president’s latest ban doesn’t affect 90 percent of Muslims in the world.
“He’s just not smart enough to figure out how to ban all Muslims?” he asked.
The court also struggled with what to make of the Supreme Court’s decision Monday to grant the administration’s request to fully reinstate the ban.
“It seems to me to have granted the stay at all the court would have had to find the likelihood that there was success on the merits,” Judge Diana Motz, a Clinton appointee, said.
Wang said the court can’t assume the Supreme Court was saying something about the merits of the case.
The 9th Circuit Court of Appeals heard arguments in a separate case Wednesday challenging a Hawaii District Court order that went further than Maryland’s preliminary injunction and fully blocked the president’s ban.
The Supreme Court has directed the district courts to act quickly in rendering their decisions.
Shortly after arguments ended the State Department announced it is fully implementing the travel restrictions per the Supreme Court’s order.
“These restrictions follow an extensive review and engagement with countries around the world involving an assessment of whether countries met certain information sharing criteria,” the agency said in a release. “Restrictions are tailored to each country, reflecting the unique factors in place for each.”
The department said the restrictions are not intended to be permanent and that no visas will be revoked.