Wall Street Journal
By Brent Kendall
May 08, 2017
President Donald Trump’s revised effort to suspend travel to the U.S. for people from six Muslim-majority countries faces its biggest legal test to date Monday, as a federal appeals court in Virginia considers whether the president’s executive order should remain on hold because of concerns about religious discrimination.
The Fourth U.S. Circuit Court of Appeals, based in Richmond, will hear arguments at 2:30 p.m. on the administration’s appeal to reinstate Mr. Trump’s revised executive order, which he signed March 6. The measure sought to temporarily bar U.S. entry to travelers from Iran, Libya, Somalia, Sudan, Syria and Yemen, which the president said was necessary to fight terrorism.
The order also sought to suspend the admission of refugees to the U.S. Civil-rights and immigrant-rights groups, as well as some states, have challenged Mr. Trump’s travel restrictions, which aren’t in effect.
Federal trial judges in Hawaii and Maryland issued rulings in March, within hours of one another, that preliminarily blocked implementation of the executive order. Those judges said legal challengers were likely to prevail on their claims that the president had unlawfully targeted Muslims for disfavored treatment.
This is the second chapter of litigation on Mr. Trump’s efforts to close U.S. borders to some travelers, setting up an escalating clash between the White House and the courts. The president has been unusually blunt in criticizing the judges who have ruled against him so far.
In January, Mr. Trump ordered broader travel restrictions, just a week into his presidency. Those initial rules took effect briefly, causing chaos for some overseas travelers and U.S. residents, before courts blocked them on due process grounds, faulting the president for not providing advance notice to the public or an opportunity for people to challenge the denial of travel.
Mr. Trump revoked his original executive order and replaced it with the March 6 version, which softened several aspects of his approach to address the due process concerns.
But claims of religious discrimination have remained, and that issue is the focus of the current legal battle. Lawyers and judges are debating, in part, the continued relevance of Mr. Trump’s campaign statements in support of a “a total and complete shutdown of Muslims entering the United States,” as well as other related statements he and his surrogates have made since the November election.
Aside from the practical importance of the case, the showdown could have broad implications for presidential power and the authority of courts to look beyond the text of an executive order to delve into the president’s intention in adopting it.
“The precedent set by this case will long transcend this order, this president and this constitutional moment,” the Justice Department, which is defending the president, said in a court brief.
The department said Mr. Trump had clear and broad authority to control the U.S. border and legitimate reasons for issuing the travel restrictions, which apply to all nationals in the six countries, regardless of religion.
The Justice Department also said judges went far off-track by evaluating the executive order in light of Mr. Trump’s past statements.
“Courts judge the legitimacy of a law by what it says and does, and occasionally by the official context that surrounds it—not by what supposedly lies in the hearts of its drafters,” the department said in its brief.
The challengers in Monday’s case, which include individuals and refugee assistance groups represented by the American Civil Liberties Union, said the government was asking the courts to turn a blind eye to an ample public record indicating that Mr. Trump’s actions were based on an anti-Muslim purpose.
“President Trump publicly committed himself to an indefensible goal: banning Muslims from coming to the United States,” the challengers said in their court brief. “The president refused to repudiate that goal on multiple occasions, including after he was elected, and he continues to advertise it to this day on his own website.”
The Fourth Circuit hearing Monday will be reviewing the decision against the Trump administration issued by U.S. District Judge Theodore Chuang in Maryland. If Mr. Trump loses, his next and final legal option would be the Supreme Court, which would set up an early test for the new-look court with Justice Neil Gorsuch, Mr. Trump’s high court pick.
Highlighting the stakes, the Fourth Circuit is skipping its usual process of hearing the case in a three-judge panel; instead the full appeals court will participate in the oral arguments and decision. The court has 15 active judges, though one of its conservative members, Judge J. Harvie Wilkinson, is expected to sit out because the Justice Department lawyer arguing the case is his son-in-law.
The Fourth Circuit once held a reputation as a conservative court, but that has changed in recent years as the addition of several judges appointed by former President Barack Obama has moved the court in a more liberal direction.
In another unusual move, the staid and stately appeals court agreed to provide a real-time streaming audio feed of the hearing to the public, which will be broadcast by C-Span and other networks. It is the first time the court has allowed a live audio broadcast of its proceedings.
A different court, the Ninth Circuit based in San Francisco, in February broadcast its oral arguments in a key case on the first Trump travel ban, which drew a surprisingly robust public audience. Two days later, that court issued a key ruling that upended Mr. Trump’s first travel restrictions.
The Ninth Circuit on May 15 will hold its own hearing on the president’s revised executive order, reviewing the decision of the Hawaii judge who blocked the administration from moving forward.
Write to Brent Kendall at brent.kendall@wsj.com
For more information, go to: www.beverlyhillsimmigrationlaw.com
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