President Donald Trump’s temporary travel ban was once again argued in court in Seattle today. This time, attorneys for Hawaii and the federal government made their cases before a panel of judges in the U.S. Court of Appeals for the Ninth Circuit.
One of the few things everyone could agree on: this is an unprecedented case.
“There is no case like this, is there?” asked Judge Richard Paez during the hearing.
The Ninth Circuit is reviewing a decision made by a federal judge in Hawaii over Trump’s second executive order (EO) that temporarily restricted travel of citizens from a handful of majority-Muslim countries. Hawaii sued the Trump administration over the EO and won a temporary restraining order preventing the ban from being implemented. Trump’s first EO on immigration also petered out in court after Washington state Attorney General Bob Ferguson secured a temporary injunction. That case also went to a panel of Ninth Circuit judges, who sided with Washington.
Ferguson recruited Expedia and Amazon in his lawsuit. Both companies rallied to his cause, claiming the travel ban hurt their recruiting efforts, business operations, and reputations abroad. More than 100 additional tech companies have publicly criticized Trump’s executive orders on travel since then.
Neal Katyal, a Washington, D.C., attorney, represented Hawaii during today’s hearing. He repeated the argument others have made in this case, that Trump’s statements about Muslims during the campaign are evidence that his executive order on immigration was motivated by religious animus. If proven, that would be in violation of the Establishment Clause of the Constitution, which prohibits the government from favoring one religion over another.
“Context matters,” Katyal said Monday. “It always has in the history of the Establishment Clause.”
Solicitor General Jeffrey Wall disputed that claim and argued that that precedent prevents the court from looking behind the motives of an EO. He cited Kleindienst v. Mandel, a case in which the Supreme Court determined the U.S. Attorney General has the right to refuse individuals entry to the country.
“The benefit of that standard … is it doesn’t call on courts to make these sorts of determinations, the second-guessing of national security determinations, that they’re ill-equipped to do,” Wall said Monday. “And the flip side, of course, is what the plaintiffs want in the Washington case. They’ve asked for a year of discovery and up to 30 depositions of White House officials to find out exactly what was in the heads and what were the motives of the people framing this EO. That’s the road that, in Mandel, the Supreme Court clearly said it wasn’t going to go down.”
Both sides endured tough questioning from the Ninth Circuit judges. They haven’t said when they plan to make a determination on the appeal.