President Donald Trump's controversial travel ban has reached the 9 Circuit Court of Appeals, with a three-judge panel discussing its constitutionality on Monday, May 15.
The judges of the 9th U.S. Circuit Court of Appeals, who listened to arguments for more than an hour in a Seattle courtroom, did not clearly indicate how they were leaning and asked pointed questions of both sides.
An attorney representing Hawaii argued that anti-Muslim statements have continued since Trump took office.
Trump says the ban is meant to keep violent individuals out of the United States.
Kari Hong, an immigration law expert and professor at Boston College Law School who has argued before all three 9th Circuit judges who heard yesterday's arguments, said the questioning made clear that the court was not persuaded by the government's claim the executive order should be considered on its face.
The 9th Circuit panel was hearing arguments over Hawaii's lawsuit challenging the travel ban, which would suspend the nation's refugee program and temporarily bar new visas for citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen. "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".
Katyal said that there was "no such statement" from Trump in which he disavowed his previous statements.
The three judges on the panel - Senior Judge Michael Hawkins, Judge Ronald Gould and Judge Richard Paez - devoted a significant portion of yesterday's oral argument to an issue that had also troubled the 4th Circuit last week: What role, if any, should the president's campaign statements about banning the entry of Muslims into the United States play in the court's evaluation of the March 6 executive order?
Attorneys for Hawaii call the order un-American and an unconstitutional form of discrimination based on nationality. During his time before the panel, Mr Katyal cited a litany of presidential statements purporting to show that hostility toward Muslims was the true impulse behind the executive order.
"Yes, Judge Hawkins, he has said several things approaching that", replied Acting Solicitor General Jeff Wall.
According to that ruling, speaking about a "Muslim ban" and speaking negatively about the religion's relationship with the West mean that the plaintiffs had a high enough likelihood of proving a violation of the First Amendment's Establishment Clause to block the order.
Trump has frequently been critical of the Ninth Circuit Court of Appeals.
Katyal responded that Trump could remedy his "taint" by taking a number of actions, including working with Congress to enact new measures. In that event, the White House might have to rethink the outlines of an order to carry out one of Donald Trump's signature promises as a candidate and as president.
Acting Solicitor General Jeffrey Wall says the executive order halting travel from six majority Muslim nations doesn't say anything about religion, and neither the state of Hawaii nor an imam from that state who wants his mother-in-law to visit has standing to sue. If the travel ban is to be upheld, Wall suggested, it should be because presidents are owed a "presumption of regularity".
Arguments are underway in Seattle over whether to reinstate the travel ban.
Dozens of protesters gathered peacefully on the courthouse steps, chanting and waving signs such as "No Wall No Ban" and "Muslim Ban is UnAmerican". An executive order issued by President Franklin Roosevelt that led to the internment of 110,000 Japanese-Americans during World War II similarly was couched as a necessity for national security and made no reference to residents of Japanese heritage, Paez noted.
In a parallel case, the 4th U.S. Circuit Court of Appeals is weighing whether to uphold an injunction issued in Maryland. The U.S. Supreme Court, in another case, ruled similarly three years later.
And the U.S. Court of Appeals for the 9th Circuit, which already prevented an earlier version of the executive order from being enforced, seemed to once again harbor doubts about it, despite Trump's attempt in March to water it down and insulate it from legal challenges.
Paez also questioned Katyal about Trump's statements, calling them "profound".