by AUBREY REBELO
President Trump’s claims of authority in the first hearing on his revised travel ban, escalated into an intense oral argument, where the judges could strike down parts of the executive order that sought to suspend travel and refugee admissions from certain Muslim countries. The main issue is whether the ban violates the Religion Clauses of the First Amendment, the Due Process Clause of the Fifth and 14th Amendments, and the ban on nationality discrimination of immigrant visas contained in a 65 year old congressional law.
The issue has become a major test of presidential power, mainly in the area of immigration. The case was held in Circuit U.S. Court of Appeals, and is the first of two public judicial hearings on the revised presidential order. A San Francisco based federal appeal court will separately review the issue late next week.
The White House frames the issue as a strictly temporary move involving national security. A coalition of groups in opposition call the order “blatant religious discrimination”, since the six countries involved have mostly Muslim populations, which are: Iran, Libya, Somalia, Sudan, Syria, and Yemen.
A majority of judges on the court brought previous statements by then candidate, Donald Trump on “preventing Muslim immigration” to question his motivation for issuing this revised executive order. “Would anything but willful blindness prevent the court from considering the president’s campaign?” asked Judge Henry Floyd. “He never repudiated what he said the Muslim ban,” said Judge Robert King.
Other judges questioned whether some of the plaintiffs challenging the ban, including relatives of those denied entry to the U.S. had “standing,” or a basis to bring lawsuits challenging multiple parts of the ban. Some judges on the bench grew frustrated with the ACLU lawyers answers. “Who makes the national security determination in this case, the risk I am addressing?” asked Judge Dennis Shedd. When attorney Omar Jadwat began to answer, Judge Paul Niemeyer jumped in; “You have a problem?” saying the president as “commander-in-chief” has power over keeping Americans safe.
Ten of the thirteen judges hearing the case were nominated by Democratic presidents, two other full time 4th Circuit judges recused themselves, both of whom were named by Republican presidents.
This is the White House’s second effort to impose a travel ban. An order issued a week after Trump took office also was quickly blocked from taking effect. Nationwide protests were held in many cities and airports. The administration issued its revised order March sixth, which included removing Iraq from the original list of banned countries. It also lifted the indefinite ban on Syrian refugees, many fleeing a years long civil war there.
Officials say the new executive order only applied to foreign nationals outside the U.S. without a valid visa. “Unregulated, unvetted travel is not a universal privilege, especially when national security is at stake.” Homeland Security Secretary John Kelly stated. Senate Minority Leader Charles Schumer said, “the latest version was no better than the original,” calling the order “mean spirited and un-American.”
A major issue for the judicial panel will be figuring out how much discretion the president really has over immigration. Throughout history, courts have been known to be very careful in this area, being immigration, and presidents including Jimmy Carter, Ronald Reagan and Barack Obama have used it to deny entry to certain refugees and diplomats, including nations such as Iran, Cuba, and North Korea.
The Trump administration strongly denies this is a “Muslim ban”, but the statements the judges cited Monday included a December 2015 Trump campaign press release calling for “a total and complete shutdown of Muslims entering the United States”. And challengers to the law say Trump has taken this power to major extremes by banning basically an entire population from multiple countries. The case is now named “International Refugee Assistance Project v. Trump”. There was no timetable on how quickly the judges would issue a ruling, or when it could be appealed to the Supreme Court.