RICHMOND, Va. — A federal appeals court appeared ready Monday to deliver another legal setback to the administration’s revised travel ban based on whether it should use President Donald Trump’s own comments against him.
Trump’s statements on the campaign trail and as president were front and center as the full U.S. Court of Appeals for the 4th Circuit heard more than two hours of arguments about whether the government should be able to implement key parts of an executive order that advocacy groups say unconstitutionally targets Muslims.
The case appears to come down to whether comments from Trump — such as calling it a “Muslim ban” and saying “we all know what that means” when signing the first version of the executive order — can be used to determine the purpose behind the ban.
“That’s the most important issue in the whole case,” Judge Robert B. King said during arguments.
It appeared Monday that a majority of the 4th Circuit seemed ready to consider those statements as part of the case, likely leading to a ruling that would uphold a lower court order that has temporarily blocked the order’s implementation. Trump is seeking to temporarily stop the issuance of new visas from Iran, Libya, Somalia, Sudan, Syria and Yemen and suspend all refugees from entering the United States.
The full 4th Circuit will issue a ruling at a later date, and the case is on track to reach the Supreme Court.
Assistant Solicitor General Jeff Wall told the 13 appeals court judges that they should look only at the words in the revised executive order, which makes no mention of religion.
Wall added that the courts should respect the political branches when it comes to national security, and shouldn’t dig deeper than the words on the page. “At bottom that’s a policy judgment for the president to make,” Wall said.
But Judge Diana Gribbon Motz and other judges expressed doubt that a president’s judgment on national security could never be questioned by federal courts, such as if the president simply issued a ban against Muslims.
“That doesn’t give him the right to violate the Establishment Clause,” Motz said, referring to religious protections in the First Amendment.
Judge Henry Floyd brought up comments from Trump and White House Press Secretary Sean Spicer and asked: “Is there anything other than willful blindness that would prevent us from getting behind those statements?”
And King pointed out that Trump had a press release calling for a Muslim ban that appeared on his campaign website as recently as last week. “He’s never repudiated what he said about a Muslim ban,” King said.
But Judges Paul V. Niemeyer and Dennis W. Shedd questioned the limits of courts using past statements, and how long that “taint” would remain on a president’s official actions after taking an oath of office.
What about a president’s statements in a college speech, or to a business group decades ago, or in a prior campaign, Niemeyer asked. What if Trump apologized 100 days in a row, Shedd asked.
“I think it’s possible that saying sorry is not enough,” replied Omar Jadwat, the American Civil Liberties Union lawyer arguing against the ban.
Judge James A. Wynn Jr. questioned whether there has ever been a case where a president made such definitive and specific statements during a campaign and then issued an executive order that appeared to implement those statement without explicitly doing so. “So we are in uncharted territory here,” Wynn said.
The revised ban, signed by Trump on March 6, was a response to the botched rollout of the initial executive order in January that sparked protests around the world and lawsuits. It is more limited in scope, affecting travelers from six majority-Muslim countries instead of seven, and exempts valid visa holders from the affected countries.
The administration is also appealing a ruling from a federal district judge in Hawaii that more broadly stops implementation of the revised travel ban nationwide. The U.S. Court of Appeals for the 9th Circuit has scheduled oral arguments in that case for May 15, and they will be televised.