(CN) – As the Fourth Circuit heard arguments Monday on a challenge to President Donald Trump’s revised travel ban, the central question appeared to be whether the president’s past anti-Muslim statements effectively doom the controversial policy.
“That’s the most important issue in the whole case,” U.S. Circuit Judge Robert King said, not long after the en banc appeals court hearing got underway.
The 13 judges must decide whether Trump’s often-caustic campaign rhetoric must be considered in deciding the constitutionality of the law, or whether the court must adhere to the text of the executive order authorizing the travel ban from six Muslim countries, when determining whether the policy illegally targets those of a single religion.
The judges did not immediately issue a decision on Monday, and their often tough questions offered no hint as to how they will rule.
In March, a federal judge in Maryland blocked the revised travel ban citing Trump’s rhetoric as evidence that the president was fulfilling an oft-repeated campaign promise to keep Muslims from entering the country.
But on Monday Acting Solicitor General Jeffrey Wall said a distinction should be drawn between the two, in effect arguing that statements on the campaign trail are one thing; actually being president and having to make national security decisions another.
Wall also insisted that despite the fact the countries subject to the ban — Syria, Iran, Yemen, Libya, Somalia and Sudan — have Muslim-majority populations, “this is not a Muslim ban.”
“The text [of the executive order] doesn’t have to anything to do with religion,” Wall said. “Its operation doesn’t have anything to do with religion.”
He said the administration chose the countries subject to the ban because the present a terrorism risk to the United States.
He went on to note that the ban applies to everyone in those countries, not just Muslims.
But Omar Jadwat, an attorney for the American Civil Liberties Union, tried to convince the panel that the rhetoric in question wasn’t just Trump shooting from the hip during dozens of campaign speeches, but included statements he made after he was election and that he continues more than 100 days after assuming office.
U.S. Circuit Judge Dennis Shedd asked Jadwat if it was clear that the president had animus against Muslims, and if it was established if there was an animus, if that would disqualify him from taking action regarding national security.
To the latter question, Jadwat replied no. “I think he could take action if it was clear it was not for his animus,” he said.
In conceding that point, however, Jadwat said what Trump has proposed is unprecedented.
“There has never been a multi-country travel ban ordered by the president,” he said.
Trump first tried to impose a travel ban shortly after his inauguration. The plan was poorly implemented, creating chaos for travelers, and sparking protests across the country.
The administration cancelled nearly 60,000 visa, but later backtracked as the chaos continued unabated.
That’s when a federal judge stepped in and put the ban on hold. In February, a three-judge panel of the Ninth Circuit ruled the travel ban would not be reinstated, and the White House made a few changes to the text and issued a new one.
The revised travel ban, to be in place for 90 days, no longer applied to those who already hold valid visa. The new executive order also removed language from the earlier ban that said religious minorities in the Muslin-majority countries would be given priority entry into the country.
In the end, however, the changes didn’t go far enough. The pool of affected people would be smaller, but the ban and the intent driving it would be the same.
The ACLU and National Immigration Law Center sued the administration on behalf of several organizations and individual plaintiffs who feared the ban would split up their families.
The administration chose to fight the travel ban battle in the Fourth Circuit because its considered one of most conservative appeals courts in the country.
But two of the court’s Republican-appointed judges recused themselves on Monday. U.S. Circuit Judge J. Harvie Wilkinson III did so because he happened to be Wall’s father-in-law. U.S. Circuit Judge Allyson Duncan also recused herself, but no reason was given.
Of the judges who heard the case on Monday, only three were appointed by Republican presidents, and nine were appointed by Democrats.
The last, Chief Judge Roger Gregory, was a recess appointment made by President Bill Clinton. He was later reappointed by President George W. Bush.
According to the Transactional Records Access Clearinghouse at Syracuse University, through late March 763 new civil immigration lawsuits have been filed in dispute of matters resulting from the executive order. Of these, 47 percent were brought by individuals detained by Immigration and Customs Enforcement.