The Trump administration argued Monday that President Trump’s statements during the 2016 presidential campaign should not be a factor in determining the constitutionality of an executive order temporarily banning travel from several majority-Muslim nations.
Acting solicitor general Jeffrey Wall argued to the 9th Circuit Court of Appeals in Seattle that President Trump’s travel ban should be judged based on its text and said that Trump’s statements during the election were “not statements in an official capacity”
“People say things on a campaign trail,” Wall said. “We shouldn’t start down the road of psychoanalyzing what people meant on the campaign trail.”
Wall argued that the Supreme Court’s 1972 ruling in Kleindienst v. Mandel determined that the president has the authority to deny non-US citizens entry in the country based on “facially legitimate and bona fide reasons.”
Trump’s revised travel ban, Wall argued, withstands the Mandel test because it was signed with the country’s national security interests in mind.
“You’ve got to have an affirmative showing of bad faith” on the part of the president, Wall said. “Whatever the bad faith exception is, to say that the Commander-in-Chief — head of the executive branch — and multiple members of the Cabinet acted pretextually — I think you ought to require the strongest showing for that kind of remarkable holding,” Wall said.
The court’s 3-judge panel, which consists of judges Ronald Gould, Richard Paez, and Michael Hawkins, seemed to be aware of the unique nature of this case.
“Is there any case — there is no case like this, is there?” Paez said.
Wall responded that “no one has ever attempted to set aside” a “neutral” law based on “campaign trail comments.”
Neal Katyal, who was solicitor general under the Obama administration and represented Hawaii on Monday, pushed back against Wall’s statements, saying that the president never disavowed his statements towards Muslims in their entirety.
During the campaign, Trump made a number of inflammatory statements that critics viewed as discriminatory towards Islam.
In December 2015, he issued a statement calling for a “complete and total shutdown” of Muslims entering the US. He later said that he believed “Islam hates us. We can’t allow people coming into this country who have this hate of the United States.”
When Paez said that those statements were made “during a highly contentious” election, Katyal brought up the district court’s ruling that the president “rekindled” his campaign trail statements after taking office.
“The truth is, there is no such statement” from Trump in which he disavowed his previous statements, Katyal said. Also, the things Trump said that could be seen as discriminatory towards Muslims were made “both pre- and post-inauguration,” Katyal added.
“First, when he issued the first executive order, he read the title of the first executive order, looked up at the camera and said, ‘We all know what that means,'” Katyal told the panel. “And that is a reference to something else. And indeed, when he issued both executive orders, he had left on his website that very statement about the complete and total shutdown of Muslims.”
“Even last month, the president said it’s a lot easier for Muslims to immigrate than Christian refugees from the Middle East, and that he’s ‘going to be helping Christians big-league,'” Katyal said.
NBC News’ Hallie Jackson asked press secretary Sean Spicer during Monday’s daily briefing whether Trump would disavow his previous statements towards Muslims.
“Right now, the president’s focused on making sure that we make the appropriate arguments to get the ban in place,” Spicer replied.
While making his argument to the court on behalf of Hawaii, Katyal said, “I think the question is, what would the objective observer view these statements as? And as the district court found, it would view them as the establishment of a disfavored religion of Islam.”
Judge Paez also touched upon the broad nature of Trump’s travel ban.
“When I read Mandel, it’s clearly dealing with a specific application of standards to a specific visa denial, and that’s not what we have here at all,” Paez said, addressing Wall.
“Well, in the context of this case, the executive order is an extremely broad order,” Paez said. “We’re not dealing with an individual one-off determination by a consular officer.”
Wall argued that while the ban was a policy, he refuted the idea that it was “extremely broad,” pointing to an Obama administration policy as precedence.
“But how many nationals does it apply to in those countries? A large number,” Paez said.
“Well, whatever the number of nationals who try to travel to the country and can’t otherwise obtain waivers,” Wall said. “We don’t know yet, obviously, because we haven’t been able to implement the order.”
In making Hawaii’s argument that the revised travel ban is unlawful and violates the Constitution, Katyal pointed to Washington v. Trump, in which US district judge James Robart issued a temporary restraining order on the first travel ban and later issued a preliminary injunction against the order, which the 9th Circuit upheld. He argued that the case nullified Wall’s arguments that the second travel ban was issued for national security reasons and should be judged on its face value.
He added towards the end of the hearing that the circumstances in this case are unique because of Trump’s prior statements before and after taking office.
“This is a very limited, you know, and a really unusual case in which you have these public statements by the president,” Katyal said. “Indeed, if you affirm the district court, there’s not a thing that any president has done in our lifetime that would be unconstitutional.”
“No president has done this,” Katyal added.
The Hawaii v. Trump case was brought after Hawaii district judge Derrick Watson issued an injunction halting the implementation of Trump’s revised travel ban in March, one day before the ban was set to go into effect.
Around the same time, a Maryland judge issued a separate ruling that stopped the enforcement of certain aspects of the ban. Both the Hawaii and Maryland judges found that the executive order was discriminatory against Muslims.
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