The federal government wrongly believes it can take an "iron wrecking ball" to immigration law through President Trump's travel ban without ever consulting Congress, lawyers arguing against the order said Wednesday.
The 9th Circuit Court of Appeals heard arguments over Trump's third attempt to implement a travel ban on foreign nationals from six Muslim-majority countries on Wednesday evening.
"If you read the government’s brief, you get the view that, ‘Oh, presidents do this all the time,” things like that," said Neal Katyal, the lawyer representing Hawaii at the court in Seattle. "Absolutely not."
"The idea that the president can ban all immigration from around the world and this court would be powerless to review it? I mean [the Trump administration's] argument is essentially the president can take an iron wrecking ball to the immigration code, that finely reticulated system that Congress has done, and put the president in the driver's seat. That’s certainly, it may be some constitution, it is not the Constitution of the United States."
The case in the western federal appeals court comes from a Hawaiian federal court, where Judge Derrick K. Watson has ruled against all three versions of Trump's travel ban. The Supreme Court on Monday lifted Watson's blockade of Trump's ban, allowing it to be fully enforced.
Watson ruled in October that the Trump administration's newest effort to enact a travel ban violated federal immigration law and "suffers from precisely the same maladies as its predecessor."
Trump's third ban added Chad, North Korea, and Venezuela to the list of countries affected by the travel ban, but the Hawaii federal judge did not include travel from North Korea or Venezuela in his ruling. Watson sought only to address travel from Iran, Libya, Somalia, Syria, and Yemen in his order.
Hashim Mooppan, deputy assistant attorney general, argued that the travel ban was not, as Katyal proffered, "unprecedented and sweeping."
"The proclamation [implementing the third travel ban] reflects a multi-agency worldwide review engagement and recommendation process and the substantive findings are that eight countries have inadequate information sharing practices or other risk factors that undermine the visa vetting system and that warrant tailored entry restrictions in order to encourage those countries to improve their practices and to protect this country until they do so," Mooppan said on Wednesday. "They’re tailored because for certain countries, the restrictions are for both immigrant and nonimmigrant visas."
The three-judge panel questioned the two sides extensively about the friction between two federal statutes, one that defines which foreign nationals are inadmissible and another that prevents discrimination in the visa issuance process.
Judges Ronald M. Gould of Seattle, Richard A. Paez of Pasadena, Calif., and Senior Judge Michael Daly Hawkins of Phoenix, Ariz., presided over Wednesday's arguments, as they did in the previous hearings over earlier versions of Trump's ban. They were all appointed by former President Bill Clinton.
Following Wednesday's arguments over the travel ban, another federal appeals court will hear arguments over the ban Friday. The 4th Circuit Court of Appeals will hear arguments over a Maryland judge's block of the travel ban. The Supreme Court also lifted the Maryland judge's blockade of Trump's ban.