9th Circuit Struggles Over Revised Refugee Order

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Kevin Daley Supreme Court correspondent
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The 9th U.S. Circuit Court of Appeals appeared to struggle over the legality of President Donald Trump’s revised executive order on refugee and migrant entry during a hearing Monday.

A three-judge panel in Seattle heard arguments over U.S. District Judge Derrick Watson’s March order that temporarily bars enforcement of two aspects of the directive — one that suspends the refugee resettlement program and another that blocks travel from six countries with high instances of terror. Both provisions are now temporarily stayed pending further proceedings. The order applies nation-wide.

Monday’s panel included Judges Ronald Gould, Michael Hawkins, and Richard Paez. All three are Clinton appointees. The argument featured appearances by two of the best appellate advocates in the country. Acting Solicitor General Jeffrey Wall defended the order for the government, while Neal Katyal, chair of the appeals practice at Hogan Lovells argued on behalf of a group of states challenging the order’s legality.

Though the outcome is far from clear, Monday’s arguments were the most favorable hearing the order has yet received in a federal appeals court. All three judges asked difficult questions of Katyal, and at times appeared sympathetic to arguments Wall advanced.

In some respects Monday’s arguments mirrored last week’s hearing in the 4th Circuit. The panel peppered Wall with questions about the president’s campaign rhetoric with respect to Muslims, suggesting they may create the impression the intent of the order is to defame Islam. Wall countered that the court should restrict its inquiry to the text of the order, and apply a test called rational-basis review. The test requires a court to sanction the government’s action if it can find some “rational relation” to a legitimate government interest.

Paez asked Wall if President Franklin Roosevelt’s widely condemned executive order requiring the internment of Japanese Americans during World War II would survive such a test, as the order “facially legitimate” and neutral in application.

“I want to be very clear about this — this case is not Korematsu, and if it were, I wouldn’t be standing here and the United States would not be defending it,” Wall replied, referencing the Supreme Court decision which upheld the order.

Wall also argued that if the court did decide to evaluate the order in light of statements Trump made during the campaign, then they should construe the relevant statements in the most charitable sense possible.

At one point, Hawkins asked Wall the exact same question one judge on the 4th Circuit put to him last week.

“Let me ask a question my friend Judge King asked last week,” Hawkins said. “Has the president ever disavowed his statements? Has he ever said anything approaching that?”

“He has said several things approaching that,” Wall replied. “Over time, the president clarified that what he was talking about are Islamic terrorist groups and the countries that sponsor them.”

Katyal seized on this point during his argument, pointing out that Wall could not point to any explicit statement in which the president distanced himself from his campaign statements, and those of his surrogates.

“He could not actually point to any disavowal,” he said.

Hawkins quickly pointed out that Katyal, while serving as acting solicitor general in the Obama administration, argued that the president is entitled to a great deal of deference in the national security and immigration areas. The judge appeared to have a stack of Katyal’s old briefs containing such statements.

“When I was in the government, I tried to get the Supreme Court to bite on that,” Katyal answered. “They didn’t.”

Paez told Katyal he didn’t believe Trump’s campaign statements could simply be set aside, but also pointed out they were made in the midst of a campaign. Therefore, he seemed to suggest, they should be taken less seriously than remarks made in the course of actual policy-making.

The panel also expressed skepticism that they were bound to follow several sections of February’s 9th Circuit decision which upheld a court order barring the first refugee order’s enforcement, another positive development for the Trump administration.

Regardless of outcome, the losing party is certain to appeal to the Supreme Court.

A ruling on the order from the 4th Circuit is expected in the coming weeks. 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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