A lawyer representing Hawaii argued Monday that you "don't need to be Sigmund Freud" to understand the intent underlying President Trump's travel ban in a case before the 9th Circuit Court of Appeals.
The hearing by a three-judge panel of the West Coast appeals court marks the second time in as many weeks that federal appeals courts have tackled the controversial travel ban, an executive order that prevents the entry of foreign nationals from Muslim-majority countries Iran, Libya, Somalia, Syria, Sudan and Yemen for 90 days. The order, a revision of Trump's first travel ban after that one was blocked by the courts, has been blocked by a federal district court. The 9th Circuit heard similar arguments about the first order earlier this year.
The attorney arguing Hawaii's challenge of the Trump administration order, Neal Katyal, said the judges need not guess at the president's motivations when determining his prejudicial intent in crafting the policy.
"We're not in favor of psychoanalysis or trying to get into the president's head," Katyal said. "You don't, your honor, need to be Sigmund Freud in order to affirm the district court. You just simply must ask as the Supreme Court has told you, what would an objective observer think with these sorts of statements?"
Katyal said if the court allowed the president to implement the travel ban, it would amount to letting Trump "take a magic eraser to the entire United States code with respect to immigration."
Katyal's argument appeared to differ slightly from his counterpart from the American Civil Liberties Union, who battled the Trump administration last week before the 4th Circuit Court of Appeals in Richmond, Va. While the ACLU referred to Trump's anti-Muslim statements as a candidate heavily in its argument, Katyal noted, "We wouldn't be standing here if it was just campaign statements on its own, but as the district court found, the president rekindled those statements through his actions as president."
In a closing statement before the 9th Circuit, Katyal also took a shot at acting solicitor general Jeffrey B. Wall for urging the 4th Circuit last week to recognize the magnitude of the issue before the court.
"Last week, my friend Mr. Wall closed his argument by saying the precedent here will transcend this case and this travel ban, and I couldn't agree more," Katyal said. "If you rule for us, you leave intact the president's powers including every decision every president has made in our lifetimes and you preserve a status quo that has existed for decades. If you rule for him, you defer to the president in a way that history teaches us is very dangerous.
"Our Constitution and laws are better than this. Our Founders wanted America to be a beacon on our coast and that beacon at the end of the day is not the quality of our sports teams or the quality of our soil. That beacon ultimately is the majestic Article III and the grand contours of the First Amendment. We ask that the district court's ruling enjoining this unconstitutional and un-American executive order be affirmed."
Wall focused Monday's argument partly on prior Supreme Court precedent, via its ruling in Kleindienst v. Mandel, that the executive branch has the authority to block individuals from entering the country.
Perhaps sensing that the three-judge panel did not appear to be inclined toward buying the entirety of his argument, Wall closed by noting that "even if we're wrong about standing and even if we're wrong on the merits," the most the court should do for his opponent was allow the injunction to apply to a very narrow grouping of individuals.
"He is conflating the nature of his legal argument with the kind of relief to which his plaintiffs are entitled if their claim prevails on the merits," Wall said.
He also replied to Katyal's shot at Wall's remarks before the 4th Circuit in Richmond, Va., last week.
"Yes, we did say to the 4th Circuit last week that the precedent set by this case for the judiciary's role in reviewing the president's national security and immigration authority will long transcend this debate, this order, and this constitutional moment," Wall said. "Counsel is right that this country is a beacon, but what makes it a beacon is the rule of law.
"Under the settled rules for justiciability, constitutional and statutory interpretation, and injunctive relief, what the president did here falls squarely within his constitutional and statutory authority. I know they disagree with this president and many of his policy judgments, but none of that converts this into a constitutional crisis and we respectfully submit that this court shouldn't treat it like one. It ought to leave this debate where it belongs: in the political arena."
The travel ban litigation moving through federal appeals courts appears to be on the fast track for the Supreme Court, which makes it possible that Wall and Katyal will have another opportunity to square off over Trump's controversial immigration restriction again soon.