The U.S. Supreme Court’s decision allowing President Donald Trump’s third travel ban to take effect — at least for now — has intensified the attention on a legal showdown Wednesday afternoon before three judges in Seattle who have previously been cool to the administration’s efforts.
Ninth U.S. Circuit Court of Appeals Judges Ronald Gould, Richard Paez and Michael Hawkins are scheduled to hear arguments in Hawaii’s challenge to the ban, which restricts travel to the United States by residents of six mostly Muslim countries and has been reviled by critics as discriminatory.
The same panel unanimously ruled against Trump’s second travel ban, saying the president had not made a showing that allowing travelers from the listed nations would harm American interests.
While courts in Hawaii and Maryland had partially blocked the third ban, the Supreme Court on Monday stepped in and lifted those orders pending the outcome of legal challenges in the 9th as well as the Richmond, Virginia-based 4th Circuit, which is scheduled to hear arguments Friday. The justices urged those courts to rule swiftly, but offered no rationale for letting the full ban take effect in the meantime.
Many legal experts saw it as sign of the high court’s thinking, one that’s likely to color the arguments this week.
“We agree a speedy resolution is needed for the sake of our universities, our businesses and most of all, for people marginalized by this unlawful order,” Hawaii Attorney General Douglas Chin said afterward. “We look forward to the arguments this Wednesday on the merits before the 9th Circuit.”
Citing national security concerns, President Donald Trump announced his initial travel ban on citizens of certain Muslim-majority nations in late January, bringing havoc and protests to airports around the country. A federal judge in Seattle soon blocked it, and since then, courts have wrestled with the restrictions anew as the administration has rewritten them.
The latest version, announced in September, targets about 150 million potential travelers from Chad, Iran, Libya, Somalia, Syria and Yemen, though it allows for some admissions on a case-by-case basis. It also blocks travel by North Koreans along with some Venezuelan government officials and their families, although those parts of the restrictions are not at issue.
The administration said the latest ban is based on assessments of each country’s security situation and their willingness to share information about travelers. But judges in Hawaii and Maryland blocked it to varying degrees just before it was due to take effect in October. The judges found that the ban appears impermissibly discriminatory, has no legitimate national security purpose and violates U.S. immigration law.
The lower court rulings “threaten the ability of this and future presidents to address national security threats and advance foreign policy interests,” the Justice Department wrote in its 9th Circuit appeal. Further, the government says, courts don’t have the authority to review the president’s decision to exclude foreigners abroad unless Congress authorizes them to, and Congress has provided no such authorization.
Critics of Trump’s travel restrictions insist that they make up the Muslim ban he promised during his campaign, and judges have seized on the president’s public statements on Twitter and elsewhere in finding them unconstitutionally discriminatory.
This week’s arguments arrive as Trump continues to stoke those anti-Islam sentiments: Just last week, he drew a sharp condemnation from British Prime Minister Theresa May’s office when he reposted a string of inflammatory videos from a fringe British political group purporting to show violence being committed by Muslims.
Despite the Supreme Court’s action Monday, Matt Adams, the legal director of the Northwest Immigrant Rights project, which has also fought Trump’s travel restrictions in court, said he’s hopeful it will be struck down.
“I’m still optimistic the courts are going to say yes, this is version 3.0, and they might have painted it a little fancier, but it’s still the Muslim ban,” Adams said.