Monday’s oral arguments in the U.S. Court of Appeals for the Ninth Circuit offered little in the way of clues as to those judges’ next moves regarding President Donald Trump’s second Refugee and Visa Order, also known as the Muslim ban. But one thing remains clear: The constitutionality of the ban is almost inevitably going to land before the U.S. Supreme Court.
The panel of three Ninth Circuit judges—all Clinton appointees—was less aggressive in its questioning of both sides than judges of the Fourth Circuit Court of Appeals had been just over a week ago. Acting Solicitor General Jeffrey Wall also appeared more confident and better prepared to address them, maybe presuming that the Fourth Circuit judges’ focus on how much weight to give President Trump and his surrogates’ anti-Muslim statements would also be a significant focus of this court’s attention.
On that point, he was correct: The fate of Trump’s Muslim ban in both this challenge and any likely Supreme Court case could ultimately come down to the significance of Trump’s own promises, both on and off the campaign trail, to ban all Muslims from entering the country.
And if and when the ban makes it to the Supreme Court, the idea that Associate Justice Neil Gorsuch could prove to be the critical vote upholding it contains a bitter irony.
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Neal Katyal was a former acting solicitor general in the Obama administration. In a January New York Times op-ed, he urged bipartisan support in confirming Gorsuch. Conservatives and even some Democrats cited Katyal’s support of Gorsuch as reason to push through his nomination and confirmation process. Katyal now represents the state of Hawaii and the other plaintiffs in the Ninth Circuit case, arguing the ban impermissibly targets Muslims in violation of the Establishment Clause of the Constitution and could find his case soon before Associate Justice Gorsuch.
But on Monday, his skill as an attorney was on full display, which for now is worth some optimism. He needed to convince the panel of judges to affirm the lower court’s injunction and he may have done the job.
Katyal knew to drive home to the court the argument that just because the word “Muslims” doesn’t appear anywhere on the text of Trump’s travel ban, that doesn’t make the ban constitutionally supported. He was prepared with specific citations of each time Trump mentioned banning Muslims from the country in order to knock down, point-by-point, the government’s claim that the ban is based on legitimate national security threats that the courts have no power to second-guess. In doing so, he gave the judges the opportunity to read and take in Trump’s words as Katyal made his arguments against the ban.
The legal arguments Monday almost identically echoed the arguments before the Fourth Circuit last week. Basically, the question comes down to whether immigration statutes or the U.S. Constitution control how to interpret the scope of Trump’s power to issue the ban, as well as how much power the federal courts have to question that exercise of power.
How the courts come down on this question is a critical one. Trump’s order remains largely blocked, thanks to federal court decisions in places including Washington, Maryland, Virginia, and Hawaii. The Ninth Circuit has already issued one opinion preventing the administration from enforcing the ban and the opinion raises serious concerns about the constitutionality of Trump’s actions in enacting it. And many of those orders are grounded in part on Trump’s statements. But all of them are temporary, which means as they work their way through the legal system, judges on the courts could change their minds and allow the administration to begin enforcement again.
Now, however, the cases could face a new wrinkle. News has emerged that Trump himself has created a national security crisis by giving classified information to the Russians. That information appears to be about radical Islamic threats to the United States. That national security threat posed the initial justification for Trump’s ban.
In theory, wouldn’t Trump’s actions here completely undercut that the ban was in any way grounded in national security threats—given that the president alone has created a national security crisis apparently related to claims of terror plots that no ban could address? Wouldn’t they confirm, once and for all, that the ban is a clear violation of the Establishment Clause by targeting Muslims even if the word “Muslim” fails to appear anywhere in the text of the order?
They should. As judge Richard Paez noted during Monday’s arguments, the executive order that led to the internment of Japanese Americans during World War II was similarly neutrally worded, and didn’t specifically in its language target Japanese people.
“There was no reference to Japanese in that executive order,” he said. “And look what happened.”
Indeed. Look what happened with the Japanese internment order. And when given the opportunity in Korematsu v. United States, the Supreme Court affirmed it. The test is now whether the Roberts Court is willing to do the same with Trump’s travel ban, despite mounting evidence that it has basically nothing to do with “national security.”