For the second time in three months, lawyers for the Trump Administration are presenting arguments in support of the president's executive order temporarily banning travel and/or immigration from a half dozen Muslim-majority nations, and the Ninth Circuit Court of Appeals will have to decide again whether to rule on the constitutionality of the text of the order as it stands, or on the full context of the order and Trump's public comments specifically referring to banning Muslims. As CNN reports, a different three-judge panel from the appeals court is hearing the arguments Monday than the three judges who previously denied the administration's attempt to appeal a lower court ruling from Seattle back in February and this round stems from the quick ruling by a federal judge in Hawaii the day that a revised version of the president's order was set to take effect, on March 15.
The case is State of Hawaii vs. Donald Trump, and as the LA Times reports, the judges this time are Judge Michael Daly Hawkins, based in Phoenix; Judge Ronald M. Gould, based in Seattle; and Judge Richard A. Paez, based in Pasadena. All three were appointed by President Bill Clinton, and the panel was randomly selected based on which judges on the court were sitting during the month of May. Though all the judges are
One can likely guess that this trio of judges is not going to reach a different conclusion from the previous three, given that the order was not fundamentally different from the first one it addresses some of the judges' concerns, like the banning of travelers with valid visas, and removed Iraq from the list of suspect countries, but it still singles out six countries and judges have continued to wrestle with how to square the semantics of the order with Trump's and his deputies' earlier statements that suggest the order was designed to punish Muslims. As US District Court Judge Derrick Watson of Hawaii said in his ruling in March, "A review of the historical background here makes plain why the Government wishes to focus on the executive order's text, rather than its context. The record before this court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the executive order and its related predecessor."
As CNN notes, the administration appears to be hoping that there will be a conflict between the Ninth Circuit's decision and another pending decision on the same executive order from the Fourth Circuit, where a 13-judge panel heard arguments last week. If the two rulings don't concur with one another, that automatically sends the case to the Supreme Court.
At issue is how broad the executive branch's power is crafting such orders, and whether the order can be taken on its face given the broader context and earlier public statements of religious animus. Cornell Law School professor Stephen Yale-Loehr tells CNN that he thinks "No matter how the two courts rule, I predict this case will go to the Supreme Court. The issue is too important for the Supreme Court to pass up."
The Ninth Circuit arguments, as they were in February, were broadcast live, and can be heard here.