Washington — The comments made during and after a contentious campaign came back to haunt President Donald Trump's executive order, adding to his troubles in May, as a group of judges in Seattle weighed the future of his troubled travel ban.
On May 15, the 9th U.S. Circuit Court of Appeals heard arguments for and against a revised version of his executive order, now making its second round, seeking to prevent citizens from six majority-Muslim countries from entering the United States for period of 90 days. It also asks that refugees wait 120 days before entering the country and cuts the number of refugees the U.S. accepts each year to 50,000. The U.S. previously had accepted up to 110,000.
The order had previously also said that citizens of Iran could not enter for 120 days, but it was dropped during the revision. The original order was issued Jan. 27, just days after Trump took office and its revision was issued March 6. Both were blocked by courts and faced legal challenges.
The U.S. bishops opposed the first travel ban as well as the second. In a March 6 statement, Bishop Joe Vasquez of Austin, Texas, who is chair of the U.S. Conference of Catholic Bishops' Committee on Migration, said the bishops are "deeply troubled by the human consequences" of the executive order, even in its revised form, particularly as it pertains to refugees.
"The revised order ... still leaves many innocent lives at risk," he said in the statement. "We are disappointed that the revised order maintains the temporary shutdown of the U.S. refugee admissions program, continues the more than 60 percent reduction in the number of refugees who can be resettled into the United States this year, and still temporarily bars nationals from six predominantly Muslim countries from entering the United States."
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"The court is very well aware of the importance of this case to all the parties and all the amicus," or friends of the court, said Ronald Gould, one of the federal appeals court judges hearing the case.
Acting Solicitor General Jeffrey Wall, arguing for the government, said the Constitution as well as acts of Congress give the president of the United States "broad authority to prevent aliens abroad from entering the country when he deems it in the nation's interest."
But Neal Katyal, an attorney representing the state of Hawaii, where a federal judge blocked the president's travel ban, said the unusual circumstances of the case, particularly because they've come from a president quoted as saying, "I think Islam hates us," and who has called for a "total and complete shutdown of Muslims entering the United States," should give pause about the travel ban's intention.
"So, I think the question is, what would an objective observer view these statements as?" Katyal asked.
Judge Richard Paez, also of the appeals court hearing the case, pointed out that some of the statements were made during "a highly contentious campaign."
"Don't you need to look at them from that perspective as well?" he asked.
But Katyal said similar comments had continued after the presidential race was over and Trump won the election. They continued "when he issued both (executive) orders, he left on his website that very statement about the 'complete and total shutdown of Muslims,' a statement that just happened to disappear moments before the 4th Circuit argument last week," Katyal said, referring to a hearing in early May at the 4th U.S. Circuit Court of Appeals about the travel ban, as it pertains to the temporary denial of visas from the six majority Muslim countries.
Wall, arguing for the government in favor of the travel ban in the 9th Circuit, said the president's concern deals with the "ties between terrorist groups and these six countries," and has nothing to do with religion.
"We're not getting reliable information" out of some countries, Wall said, and so what the president is worried about is establishing a "brief period" so that the government can look at the vetting procedures for people coming in to the U.S. from certain places.
"He wasn't saying ... that they're all dangerous or that they all are potential terrorists or anything like that," Wall argued.
Paez asked Katyal, the attorney representing the state of Hawaii in seeking a block to the travel ban, that given post-election statements from the president, "does that mean the president is forever barred from issuing an executive order along these lines? What does he have to do to issue an executive order that, in your view, might pass constitutional muster?"
Katyal said the president could have disavowed certain statements after the campaign was over, but instead, "the president rekindled those statements through his actions as president," particularly with the executive orders and by making further statements against Muslims and Islam.
"What would an objective observer view these statements as?" Katyal asked. "(The observer) would view them, as the district court found, as an establishment of a disfavored religion of Islam."
Katyal said what was being proposed with the executive order "is something new and unusual. What you're saying is, this whole class of people, some of which are dangerous, we can bar them all," but the founders of the country "were particularly concerned about the idea of immigration restrictions being used to establish a religion."
Many in legal circles expect the travel ban, and the various objections to it, to reach the U.S. Supreme Court at some point, but some groups, such as the U.S. bishops, worry about how it's immediately affecting people fleeing dangerous situations.
"Refugees are already subjected to the most vigorous vetting process of anyone who enters the United States," said Vasquez in the March statement. "There is no merit to pausing the refugee resettlement program while considering further improvement to that vetting process."