SEATTLE (CN) – A Ninth Circuit panel heard arguments Monday on a federal judge’s suspension of President Donald Trump’s revised travel ban on refugees and residents of six Muslim-majority nations.
U.S. District Judge Derrick Watson in Hawaii stopped enforcement of the executive order in March, finding it discriminated against Muslims.
Hawaii and imam Dr. Ismail Elshikh challenged the revised ban, which is a narrower version of the original order that was struck down by the Ninth Circuit.
Monday’s hearing was again before a three-judge panel of the Ninth Circuit, which Trump has complained about before on Twitter, accusing the San Francisco-based circuit of having a “terrible record.”
Acting U.S. Solicitor General Jeffrey Wall argued to reinstate the ban, saying there was “not a difference in kind from what the previous administration did,” referring to former President Barack Obama’s enhanced visa security clearance procedures for some Muslim-majority countries.
He said the president has “broad authority” on immigration policy.
“Do you agree there is a bad-faith exception? Circuit Judge Richard Paez asked, jumping to a key argument in favor of overturning the ban.
Wall said yes, but the criteria would have to be “really high” to prove Trump actually intended to ban Muslims, which would be prohibited under the First Amendment.
Campaign rhetoric does not prove bad faith, he said.
Senior Circuit Judge Michael Daly Hawkins asked Wall if Trump, who called for a ban on Muslim entering the United States while running for office, ever disavowed those campaign statements.
“Yes. Over time, he clarified he meant Islamic terror groups,” Wall said.
Neal Katyal, a former acting solicitor general under Obama now representing Hawaii at the hearing, firmly disagreed.
He said Trump’s campaign website had a statement posted calling for a “total and complete shutdown of Muslims entering the United States” until last week, when it was removed after a reporter questioned White House Press Secretary Sean Spicer about it.
“You don’t need to be Sigmund Freud to affirm the district court,” Katyal said.
He said it would be “dangerous” to defer to the president’s interpretation of his own intent.
The president could then enact many discriminatory laws and simply say, “It’s not discriminatory to me,” Katyal said.
Katyal also argued Hawaii has an interest in seeing its refugee-relocation program continue, and Elshikh has standing in the case because his mother-in-law is seeking a residential visa that is affected by the order.
“If you rule for us, you preserve the status quo,” Katyal said.
Circuit Judge Ronald Gould also sat on the panel. All of the panel judges were appointed by President Bill Clinton.
Trump’s revised order lists six nations instead of the original seven, leaving out Iraq.
The other nations covered under the ban are Iran, Syria, Sudan, Libya, Somalia and Yemen. Citizens from the six nations would be barred entry for 90 days while new vetting procedures are enacted, and all refugees would be barred for 120 days.
The Fourth Circuit is considering an appeal of a similar ruling.
The U. S. Supreme Court is expected to have the final say over the order.