(CN) – An en banc Fourth Circuit on Friday grappled with President Donald Trump’s tweets and a recent Supreme Court decision in trying to decide whether to strike down a federal judge’s decision to partially block the latest version of the administration’s travel ban.
Friday’s arguments marked the second time in a week that the Trump administration was in court defending its travel policy. The ban restricts citizens Chad, Iran, Libya, North Korea, Syria, Somalia and Yemen from getting U.S. visas. Some Venezuelan officials are also covered.
The administration is appealing to the Fourth Circuit to lift a preliminary injunction imposed by a federal judge in Maryland that partially blocked the ban.
On Monday, a divided Supreme Court allowed the administration to fully enforce the ban even as legal challenges against it make their way through the courts. On Friday, even as attorneys gathered at the appeals court in Richmond, the State Department said the ban had been fully implemented.
Deputy Assistant Attorney General Hashim Mooppan argued the travel restrictions mapped out in the proclamation are based on recommendations from the federal agencies, which found after a nationwide review that the eight target countries had inadequate information-sharing practices for immigration purposes.
“The ban lasts until they fix the availability of information,” Mooppan said, noting the order instructs the country’s policies to be reviewed every 180 days. “We’re trying to encourage foreign governments to change their behavior.”
But a majority of the 13 judges hearing the case Friday expressed skepticism that the travel ban was not really a “Muslim ban.”
U.S. Circuit Judge Pamela Harris drove these concerns home by pointing to the president’s re-tweeting last week of anti-Muslim videos originally posted by a fringe, right-wing group in the United Kingdom.
The Obama-appointee noted the tweets are effectively official statements signed by the president.
“Although I agree people always see things differently, some of those Nov. 29 statement you know, even with deference, construing them in a light more favorable to the president, it’s a little tricky to find the nationality security rationale in those,” she said.
U.S. Circuit Judge Robert King noted such concerns persist because the court hasn’t seen the report the recommendations are based on.
Cecillia Wang, deputy legal director for the American Civil Liberties Union who argued on behalf of the International Refugee Assistance Project and other groups challenging the ban, argued that’s because Trump has not made the required national security finding under the Immigration and Nationality Act to justify banning 150 million immigrants from entering the country.
With that, the panel turned back to the subject of the president’s tweets.
“Are these tweets official statements,” U.S. Circuit Judge Stephanie Thacker asked.
“Yes,” Mooppan said.
“So ‘Shooting Muslims with bullets soaked in pigs blood.’ How is that supposed to be taken?” Thacker asked, referring to a tweet in which Trump repeated an apocryphal story about how Gen. John Pershing put down a Muslim insurrection in the Philippines in the early 20th Century.
Mooppan argued the president’s tweets were not relevant to the case — the new executive order had removed any mention of religion including a preference for Christian immigrants fleeing the Middle East that had been included in the original travel ban.
But U.S. Judge James Wynn was unconvinced. He said in the absence of getting to review the documents that led to the ban, the court was left only with the president’s statements to rely on — and those statements appear to show an anti-Muslim bias, he said.
“What do we do as an observer when he tweets the very thing that is [this EO’s] purpose?” Wynn asked. “Do we just ignore reality?”
But the President had allies on the bench as well.
U.S. Circuit Judge Paul Niemeyer grilled Wang over a number of issues, ranging from the Obama administration having put similar restrictions on the countries covered by the ban to the nature of the courts questioning the president’s authority.
“These countries are historically part of the problem for the same reason, they have no information about travelers, their people are hard to vet and terrorist groups pop up there,” Niemeyer , a George H. W. Bush appointee, said. “[This executive order] is the judgment of the executive using sovereign power.”
“[On National Security and International issues] you can’t ask the President ‘why?’” Niemeyer continued. He said in doing so, the courts were acting “aggressively outside of their role.”
But Judge Paul Niemeyer notes the first paragraph of the proclamation says entry of these individuals would be detrimental to the United States.
U.S. Circuit Judge Steven Agee, a George W. Bush appointee, asked Wang why President Trump’ proclamation is invalid but the proclamation President Reagan issued banning Cubans from entering the country and President Carter’s proclamation banning Iranians were not.
“I don’t think any nationality bans are valid, but you don’t have to buy that in order to accept our statutory argument,” she said. “The distinction is that with Iran and Cuba the presidents were acting in response to exigent circumstances with a bilateral crisis.”
In issuing the new restrictions, Wang argued the president wanted to disfavor Islam and directed his lower-level officials to use nationality as a proxy for religion.
But Judge Dennis Shedd, a George H. W. Bush appointee, said the president latest ban doesn’t affect 90 percent of Muslims in the world.
Beyond what the president says in 140 characters or less. the court also struggled with what to make of the Supreme Court’s decision Monday to grant the administration’s request to fully reinstate the ban.
“It seems to me to have granted the stay at all the court would have had to find the likelihood that there was success on the merits,” said U.S. Circuit Judge Diana Motz, a Clinton appointee.
Wang said the court can’t assume the Supreme Court had already decided the merits of the case before the appeals court.
On Wednesday, the Ninth Circuit heard arguments in a separate case challenging an order handed down by a federal judge in Hawaii that went further than Maryland’s preliminary injunction and fully blocked the president’s ban
The Supreme Court has directed both appeals courts to quickly render their decisions.