A coalition of civil rights groups challenging President Donald Trump’s second executive order on refugees and migrants struggled during oral arguments Monday afternoon before the 4th U.S. Circuit Court of Appeals, despite appearing before a panel of judges sympathetic to their cause.
Their underwhelming performance notwithstanding, there is little reason to believe the Trump administration will prevail before the 4th Circuit.
The U.S. Department of Justice asked the Richmond-based appeals court to overturn District Judge Theodore Chuang’s March order barring enforcement of a key provision of the president’s revised order, which temporarily banned citizens of six countries with high instances of terrorism from entering the U.S. After Monday’s hearing, the court appears poised to uphold Chuang’s ruling.
All of the 4th Circuit’s active judges participated in Monday’s arguments. For the first time since 1998, the court preemptively decided to hear the case “en banc,” a procedure in which all active judges in a circuit court take part in a case. En banc review is generally reserved for cases of extraordinary importance. Two judges appointed by Republican presidents recused themselves from the hearing due to conflicts of interest. The thirteen-judge panel featured 10 Democratic appointees and three Republican appointees.
Acting Solicitor General Jeffrey Wall represented the Trump administration, while the ACLU’s Omar Jadwat argued on behalf of a coalition of civil rights groups challenging the order.
Much of Wall’s arguments, which ran well past the time initially allotted by the court, concerned statements made by the president and his surrogates explicitly with regard to the entry of Muslims into the country. The acting SG urged the court to confine their review to the text of the order, though the panel’s Democratic appointees were eager to discuss Trump’s campaign pledge to temporarily halt Muslim migration to the U.S. Federal courts across the country have found that Trump’s statements evince an intent to discriminate against Islam, or at least create the impression of anti-Muslim bigotry.
Wall said that the courts should only take notice of Trump’s statements about Islam if they definitively prove the president’s true intentions differ from those stated in the order. He further argued the court was bound by precedent to give the most charitable reading possible to any extrinsic statement made by Trump with respect to the order.
He urged the court to apply a legal test called rational-basis review in judging the order. Rational-basis review, the lowest level of judicial scrutiny, simply requires a court to uphold the government’s action if it can find some “rational relation” to a legitimate government interest.
Nonetheless, a clear majority of the court’s judges appeared unwilling to simply ignore Trump’s statements. At one point, Judge Henry Franklin Floyd, a Barack Obama appointee, insinuated that only “willful blindness” could lead the court to ignore the Trump administration’s rhetoric.
The ACLU’s Jadwat stumbled throughout much of his argument, which also ran nearly an hour. He seemed unable to convince the court that Trump’s order was unlawful in the absence of Trump’s statements.
At several points, Democratic appointees intervened to point him the way of success, while liberal legal commentators on Twitter urged the ACLU to find a new advocate as the litigation proceeds.
Under intense questioning from GOP appointees, Jadwat made contradictory statements at several junctures. At one point he asserted that the order would be lawful if it had been issued by another president who had not made inflammatory comments about Islam. Moments later, he argued the order was facially unlawful. The statement prompted incredulous responses from the panel’s judges.
He also struggled to articulate a theory of “contamination,” or a theory governing the extent to which Trump’s statement about a “Muslim ban” should inform judicial decision-making. At one point Judge Dennis Shedd, a George W. Bush appointee, asked what Trump could do to “sanitize” the “contamination” caused by his statements.
“What if he says he’s sorry everyday for a year? Would that do it for you?” he asked.
“No,” Jadwat responded.
Later in the hearing Judge Albert Diaz, an Obama appointee, asked how long Trump’s statements would continue to contaminate an order on refugee and migrant entry. Jadwat responded that it was too difficult to give a definitive answer.
A ruling is expected in the coming weeks. Government lawyers asked the court to issue a decision as quickly as possible, given the national security issues in play. Regardless of outcome, the losing party is certain to appeal to the Supreme Court.
The 9th Circuit will also review the revised order during a hearing next week in Seattle. Should the 4th and 9th Circuits reach different conclusions with respect to the order, the prospects of Supreme Court review will heighten dramatically.
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