The government’s defense Monday of Donald Trump's Muslim ban 2.0 at the 4th Circuit Court of Appeals didn't vary much from its defense of his original ban in the 9th Circuit: Trump should have unchecked authority over immigration issues, the Department of Justice argued.
But if the question of unfettered authority dominated in front of the 9th Circuit panel, the central theme during the 4th Circuit's oral arguments was how much, and even whether, Trump's anti-Muslim remarks should be weighed in reviewing the order's constitutionality. The judges varied greatly on that question, making for challenging inquiries on both sides of the argument, writes Adam Liptak:
Some seemed prepared to look behind the face of the revised order to take account of Mr. Trump’s statements, and several suggested the remarks could doom the order. Others, though, said the law did not permit judges to second-guess a president’s national security assessments, indicating that they were prepared to uphold the order.
Judge Robert B. King suggested that judges could not ignore Mr. Trump’s statements and motives. “He’s never repudiated what he said about the Muslim ban,” Judge King said of the president.
But Judge Paul V. Niemeyer said Mr. Trump’s official actions should not be assessed based on his earlier statements. “Can we look at his college speeches?” Judge Niemeyer asked. “How about his speeches to businessmen 20 years ago?”
Acting solicitor general Jeffrey Wall faced off against ACLU attorney Omar Jadwat during the two-hour argument before a 13-judge panel that included nine appointees from Democratic presidents. It marked the first appellate consideration of Trump’s second Muslim ban. Next Monday, a 3-judge panel in the 9th Circuit will also review Trump’s second effort after a federal judge in Hawaii blocked key portions of the ban.