Judges question attorney for Hawaii

Posted May 16, 2017

The panel, made up entirely of judges appointed by Democratic former President Bill Clinton, reviewed a Hawaii judge's ruling that blocked parts of the Republican president's revised travel order.

During one of the more heated exchanges, Judge Richard Paez asked if President Franklin Roosevelt's executive order during World War II authorizing the internment of Japanese Americans would "pass muster" under the government's arguments in the travel ban case.

Fourteen states, including Alabama, Arizona, Montana and MS, have urged the Ninth Circuit to permit enforcement of Trump's directive.

Acting Solicitor General Jeffrey Wall, representing the Trump administration, called on the judges not to delve into a "wide ranging inquiry into subjective motivation" in considering Trump's past comments on Muslims, because "the (executive) order on its face doesn't have anything to do with religion and in operation doesn't distinguish on the basis of religion".

In his ruling issuing the nationwide injunction, Judge Watson wrote that "a reasonable, objective observer - enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance - would conclude that the Executive Order was issued with a goal to disfavor a particular religion". The judge asked whether the Supreme Court, which upheld that order, reached the correct decision.

Wall, however, argued that another section of immigration law gave the president broad authority to halt the entry of foreign nationals into the United States, and that it wouldn't make sense to allow people to get visas if they were going to be barred from actually entering the country.

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Paez also questioned Katyal about Trump's statements, calling them "profound". "If you rule for him, you defer to the president in a way that history teaches is very risky. You open the door to so much". At a hearing in Seattle to determine whether to restore the now-frozen ban, the panel of the 9th U.S. Court of Appeals asked about how they should determine the ban's intent, a key issue in the case. He successfully defended the Voting Rights Act of 1965 and won a landmark decision in a case that challenged the policy of military trials at Guantanamo Bay, Cuba, when the Supreme Court found that President George W. Bush's tribunals violated domestic and military law.

For the second time in two weeks, a top Justice Department lawyer faced a panel of federal appeals judges who were skeptical about the legality of President Trump's latest attempt at a travel ban.

But unlike the due process concerns driving the analysis in the last round, this time the appeals court must squarely wrestle with Trump's past statements about Muslims as it decides whether the lower court in Hawaii correctly blocked the revised ban.

"The executive order sets out national security justifications, but how is a court to know whether in fact it's a Muslim ban in the guise of national security justification?" Joel, can you describe what happened in court today?

But Paez seemed troubled by the logical conclusion of Wall's argument, asking him if the executive order at issue in the infamous case of Korematsu v.

"No, Judge Paez", Wall immediately responded. That said, the governor - the government's lawyer vehemently denied this comparison and said that these are very different cases. "But none of that converts this into a constitutional crisis".

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Wall picked up on Katyal's arguments in his conclusion, saying that Katyal was right that the U.S. was a "beacon", but that "what makes it a beacon is the rule of law". "It ought to leave this debate where it belong, its in the political arena".

Lawyer challenging revised travel ban before...

The three-judge panel from the 9th U.S. Circuit Court of Appeals had tough questions for each side. In this image made from a C-SPAN video, participants and members in the gallery stand as three judges for the 9th US Circuit Court of Appeals enter the room in Seattle, Monday, May 15, 2017. And in parallel proceedings on the East Coast, the 4th Circuit, which is based in Richmond, heard arguments on the matter last week. In 2012. Hawkins joined Judge Stephen Reinhardt's majority ruling striking down California's gay marriage ban.

Wall pointed to a previous US Supreme Court case that said courts couldn't look behind certain immigration-related decisions if, on their face, they presented a legitimate objective and the government's actions had a rational relationship to that goal. "The real question, though, isn't the timing, but whether the two courts come out the same way. This issue may be bound for the Supreme Court no matter what, but it will certainly be heard by the justices if these lower courts disagree".

This case could ultimately be decided by the Supreme Court.

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