In the second appeals court hearing in a week on President Trump’s order seeking to limit immigration from the Mideast, the search went on again among judges on Monday for a way to decide the controversy narrowly.
Just as judges in Richmond, VA, a week ago seemed somewhat anxious about making a sweeping constitutional decision that could curb presidential authority too greatly, a panel of judges in Seattle showed some of the same concern. This search was encouraged again by the same Trump Administration lawyer, cautioning against tying the president’s hands in reaction to a potential security threat.
Both times, though, it seemed clear that the end result might well be a decision that, even if narrow, could actually work to bar the presidential executive order that targets travelers from Mideast nations. In that event, the White House might have to rethink the outlines of an order to carry out one of Donald Trump’s signature promises as a candidate and as president.
On Monday, it was the turn of the U.S. Court of Appeals for the Ninth Circuit to explore the revised version of the Trump order – the same court that refused in February to let the president and his aides enforce the original version after ruling that it was likely to be struck down as an unconstitutional attack on the Muslim religion. This time, the appeals court was hearing a case involving a challenge by the state of Hawaii.
The revised Trump order is also under review now by the U.S. Court of Appeals for the Fourth Circuit, following its own hearing a week earlier.
Acting U.S. Solicitor General Jeffrey B. Wall, who argued both times, did not vary his argument at the lectern in Seattle, contending basically that the courts should act against the presidential order only if the challengers had made an extremely strong argument that Trump had misused his powers.
His argument, in the end, seemed somewhat less compelling this time because his adversary, former U.S. Solicitor General Neil K. Katyal, made a distinctly more confident and polished presentation than a different lawyer for the challengers had in Richmond.
One of the high points of Katyal’s argument, in fact, was to use the setting of the Ninth Circuit hearing to link the Trump order to the infamous order by President Franklin D. Roosevelt during World War II to imprison tens of thousands of Americans – including citizens – of Japanese ancestry because of group suspicion of their loyalty.
It was in the very same Seattle courthouse, Katyal noted, that a Washington college student, Gordon K. Hirayabyashi, had been tried and convicted for violating a curfew under the Roosevelt order.
Katyal, when serving as a government lawyer, had written an article sharply critical of the government’s position in defending the Roosevelt order. That article, in fact, is cited in one of the legal briefs filed in the Ninth Circuit case. That brief was brought up on Monday by one of the Circuit judges, Richard A. Paez. He asked government lawyer Wall if the Trump order was like the Roosevelt mandate.
Appearing somewhat unsettled by the question, Wall strenuously insisted that the two were nowhere nearly alike. If they were, he insisted, “I would not be standing here to defend the order, neither would the United States [government].” But the opening had been created for Katyal to exploit with his reference to the Japanese internment history
Katyal also sought to help make it easier for the Ninth Circuit to rule against the Trump order, arguing that it could be decided just as a violation of federal immigration laws without having to address a profound constitutional question of religious discrimination. The presiding judge, Ronald M. Gould, seemed particularly interested in that possible approach.
The lawyer for Hawaii also suggested that this panel of judges did not have to deal with the difficult issue of its authority to look beyond the actual text of the Trump order to consider the many statements by Trump that he was going to impose a “Muslim ban.” The Ninth Circuit Court, Katyal said, had already decided that in its ruling against the original Trump order.
The third judge on the panel, Richard Daly Hawkins, seemed the most skeptical among the three about the challenge to the Trump order. But he did test Wall on whether Trump had ever “stood up and said” he had been wrong in talking about a Muslim ban. “Over time,” Wall answered, “the President has clarified his order,” that it was a response to a national security threat from terrorists coming into the country.
Hawkins tried to make it somewhat easy for Wall at one point, by asking if there were one way to interpret the president’s order that was “good” and another way that would make it look “bad,” a court should choose the “good.” Wall said that was clearly what prior Supreme Court precedent on courts’ review of immigration decisions required. Courts, he added, should “not go down that road” of inquiring into presidential motives.
Katyal responded later to that point, arguing that the challengers were “not trying to get into the President’s head,” since the challengers had many actual statements by Trump that he acted to achieve “a complete shutdown of Muslims entering the country.”
Because the Ninth Circuit heard the case before a three-judge panel, and not the full membership of the court as the Fourth Circuit Court had done, it seems likely that the Fourth Circuit case might move more quickly to the Supreme Court. The losing side of a panel decision at the Ninth Circuit Court could seek review by the full membership there, taking additional time.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
