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- Judges aggressively questioned the Trump administration attorney on whether President Donald Trump’s anti-Muslim retweets should be considered “legally relevant” to the travel ban on six majority-Muslim countries.
- The case was being argued in the Ninth Circuit Court of Appeals on Friday, after a similar hearing in the Fourth Circuit two days earlier.
- The Supreme Court on Monday allowed the Trump administration to enforce the ban, pending the results of the two federal appeals courts.
Federal appeals court judges in Virginia heard arguments Friday on the latest iteration of President Donald Trump’s travel ban and posed aggressive questions to the government lawyer about Trump’s recent tweets on Muslims and terrorism.
Trump last week retweeted a string of anti-Muslim videos originally posted by a far-right British extremist. Deputy Assistant Attorney General Hashim Mooppan said the retweets were not “legally relevant” to the travel ban, which applies to six majority-Muslim nations. Several judges, however, appeared skeptical.
“While the president may be showing anti-Muslim bias in his tweets, that cannot be taken into consideration over the content of the proclamation? It has to be viewed based on its language?” Judge Barbara Keenan asked.
“Do we just ignore reality and look at the legality to determine how to handle this case?” Judge James Wynn asked.
Mooppan argued several times that where it’s possible to draw inferences from Trump’s tweets, “you should take the more reasonable, charitable inference, rather than the more hostile one.”
Judge Stephanie Thacker noted that Trump had tweeted as recently as August about a long-debunked myth that an American general had deterred terrorism by shooting Muslim insurgents with bullets dipped in pigs blood.
“How am I to take that charitably?” she asked.
The hearing, like a similar one held in the Ninth Circuit in Seattle two days earlier, was highly anticipated after the Supreme Court on Monday allowed the Trump administration to temporarily enforce the travel ban pending the outcome of the two federal appeals.
The ban targets roughly 150 million residents of eight nations and imposes varying restrictions on their entry to the US.
‘The president can do it, can’t he?’
Another line of questioning posed to the Trump administration’s attorney was about the president’s authority to unilaterally impose his ban without being subject to judicial review.
Mooppan argued that Trump has the authority to do so, provided that he has made a finding that certain travelers’ entry were not in the national interest of the US. Mooppan argued that the Trump administration – having conducted a classified, worldwide review of each country’s information-sharing practice on its nationals – has already made the finding.
Several judges pushed back that the Trump administration’s worldwide review report was not only classified and unavailable to the public, but conducted by the Department of Homeland Security, a non-independent body subordinate to Trump himself.
Many of the judges were equally aggressive in questioning American Civil Liberties Union attorney Cecillia Wang, who represented the plaintiffs. Several judges asked Wang multiple times to explain why the travel ban violated the Constitution and the Immigration and Nationality Act.
“It seems to me, all we need to do is look at the face of the proclamation and say whether it is rational and exercised in good faith,” said Judge Paul Niemeyer, who made a similar argument during a May hearing on Trump’s second travel ban. Niemeyer had dissented with his colleagues’ ruling to uphold an injunction against the ban.
“[The ban] can be a product that you perhaps couldn’t be proud of, but the president can do it, can’t he? As long as it doesn’t violate the INA or the Constitution,” Judge Keenan said.
“It does in fact violate both,” Wang responded, arguing that the travel ban demonstrates “internal illogic” by failing to include certain countries with known deficiencies in their information-sharing practices on its travelers.
“It doesn’t really sound like we can say to the President of the United States, ‘You’re not being logical here,'” Judge Diana Motz remarked.