An American Civil Liberties Union lawyer argued before a federal appeals court Monday that President Trump's travel ban should be ruled unconstitutional because the action was taken by Trump and not a different president.
The 4th Circuit Court of Appeals in Richmond, Va., heard contentious oral arguments lasting more than two hours in a case involving a lower court order block of Trump's travel ban. Trump's revised executive order preventing some immigrants from entering the country came in early March as his earlier immigration ban was blocked by federal courts. The new order includes a provision that prevents the entry of foreign nationals from Muslim-majority countries Iran, Libya Somalia, Syria and Yemen for 90 days. A district court judge in Maryland blocked that provision March 15, and the federal government appealed the decision to the 4th Circuit Court of Appeals.
Omar C. Jadwat, an American Civil Liberties Union senior staff attorney, argued that the revised ban should be deemed unconstitutional because of Trump's anti-Muslim comments while on the campaign trail and after the election.
Judge Paul Niemeyer, an appointee of President Ronald Reagan, raised a hypothetical scenario regarding whether a different outcome in the 2016 election would have changed the constitutionality of the same executive order. In response, the ACLU attorney said the courts could have decided the same action taken by a different president was constitutional.
"We have an order on its face," Niemeyer said, pressing Jadwat about the hypothetical scenario. "We can read this order and we have no antecedent statements by a candidate about this order. We have a candidate who won the presidency, some candidate, president, other than President Trump won the presidency and then chose to issue this particular order with whatever counsel he took. … He issued this executive order. Do I understand that just in that circumstance the executive order should be honored?"
"Yes, your honor, I think in that case it could be constitutional," Jadwat answered.
Jadwat then avoided questions from the judges about whether the text of the order itself was unconstitutional. Jadwat said there may be nothing Trump could say now to make his campaign statements about banning Muslims from the U.S. not matter in cases concerning the travel ban.
Pressed by Judge Dennis Shedd, an appointee of President George H. W. Bush, about whether any repudiation of the campaign and post-election comments about a Muslim ban would satisfy Jadwat, the ACLU indicated there's not much Trump could say now.
"I think a simple repudiation might not, no, would not change the result," Jadwat told Shedd.
"Let me follow up then, what if he says he's sorry every day for a year?" Shedd said to laughter in the courtroom. "Would that do it for you?"
"No, your honor," Jadwat answered.
"Your honor, I think it's possible that saying sorry is not enough. That's true in a lot of circumstances, your honor."
Jadwat's argument hinged partly on the idea that the court should consider Trump's campaign comments about banning Muslims when ruling on the March executive order.
Acting U.S. Solicitor General Jeffrey B. Wall argued that the court should not look back on the president's campaign statements and should look to the text of the order. Wall said the president was responsive to earlier courts' concerns when writing the new executive order.
"[Trump] made clear he was not talking about Muslims all over the world and that's why this is not a Muslim ban," Wall said Monday. "Its text doesn't have anything to do with religion. Its operation doesn't have anything to do with religion. The only thing they've got are to reach back and say what we know despite its text and operation [is] what was in the president's head. And I think there's different ways to read those statements and respect for a coordinate branch and a presumption of regularity I think require reading them in a way that is not most hostile to the president, but would render this action lawful."
Wall nevertheless faced questions from Judge James A. Wynn Jr., an appointee of former President Barack Obama, about whether there was any historical analog for the things Trump had said and executive actions he subsequently took on the travel ban.
"Judge Wynn, candidates talk about things on the campaign trail all the time," Wall said. "And no, we haven't had a lot of litigation over them because the right legal standards here don't allow for inquiries into subjective motivations."
"We are in uncharted territory, I think, here," Wynn interjected.
While each side was slated to have 30 minutes for oral arguments, the court allowed both attorneys to go well beyond their allotted amount of time. More arguments over Trump's newest executive order are still to come.
Wall, representing the Trump administration, argued first and closed with a rebuttal of the ACLU's position. In his closing statement, Wall urged the court to leave the controversial politics of the executive order out of its decision-making process, lest the entire American justice system be forced to live with the consequences.
"The order before this court has been the subject of heated and passionate political debate to be sure, but the precedent set by this case for this court's role and the judiciary's role in reviewing the president's power at the borders to keep our nation safe will long transcend this debate and this order and this constitutional moment," Wall said. "And in cases like this one that spark such intense feelings on both sides, we would respectfully submit it is all the more important to apply the usual rules of justiciability and interpretation and injunctive relief and applying those rules here, we respectfully submit that that debate ought to be left where it belongs: in the political arena."
The 4th Circuit case is the first of two new arguments over Trump's travel ban moving through federal appellate courts this month. The 9th Circuit Court of Appeals on the West Coast will begin hearing another case on Trump's ban next Monday. Senate Judiciary Committee hearings on Trump's solicitor general nominee, Noel Francisco, will begin in between the arguments and likely to be colored by the proceedings in the circuit courts.