A three-judge panel on the 9th Circuit Court of Appeals appeared divided Wednesday evening over whether to uphold a Hawaii district court order blocking the third version of President Trump’s travel ban.
Judge Michael Hawkins, a Clinton appointee, seemed to suggest Trump’s latest restrictions on nationals from six majority-Muslim countries are different this time around than the previous bans the court struck down.
“The prior two versions of the executive order were based a bit on speculation,” he said.
“We’ve now had a 90-day period in which the government and its agencies … have gone through and, in part based on information provided by the past administration, determined there are certain countries in the world that you can’t tell if Person A is really Person A. What’s wrong with that?”
Mitchell Reich, one of two attorneys arguing on behalf of the state of Hawaii challenging the ban, said the administration has not proved the individual vetting process is failing and letting harmful people into the United States.
“The burden is on the alien to show they are admissible and if they can’t produce documents sufficient to do so then they can be denied entry,” he said.
But Hawkins appeared skeptical about relying on documents to make immigration determinations.
“You would trust Kim Jong Un to say 'This person is really this person, you’ve got take him in'?” he asked, referring to the North Korean leader.
The arguments in Seattle came just days after the Supreme Court handed Trump a temporary victory by granting the administration’s request to fully reinstate the ban pending an appeal.
In October, Hawaii District Court Judge Derrick Watson blocked Trump’s new targeted restrictions on immigrants from Chad, Iran, Libya, Somalia, Syria and Yemen from taking effect, but left in place the restrictions on Venezuelan officials and immigrants from North Korea.
Watson said in his 40-page ruling Trump’s latest action “runs afoul” of the Immigration and Nationality Act (INA) provisions that prohibit nationality-based discrimination in the issuance of immigrant visas.
The 9th Circuit, however, gave Trump a partial win last month when it granted a portion of his request for an emergency stay of Watson’s order. The court said the administration could ban nationals from the six majority-Muslim countries, but only if they lack a bona fide relationship with a person or entity in the United States.
The carve-out was the same exemption the Supreme Court issued in June when it reinstated Trump’s 90-day ban on nationals from Iran, Libya, Somalia, Syria, Sudan and Yemen. Trump replaced Sudan with Chad when he issued the new orders on Sept. 24.
During Wednesday’s arguments, Deputy Assistant Attorney General Hashim Mooppan argued a president’s decision to deny or revoke an immigrant visa is not subject to judicial review unless Congress says otherwise.
Giving a hypothetical, Judge Ronald Gould, a Clinton appointee, asked if the courts could step in if a president and his Cabinet decided to ban all immigrants from any place in the world if they aren’t American citizens.
“I don’t think so,” Mooppan said.
“The Supreme Court has made clear repeatedly that the decision of the political branches to allow aliens into the country is a political decision that courts cannot review unless Congress has expressly authorized otherwise.”
Reich called that argument “breathtaking.”
“Congress chose to make individual visa decisions unreviewable. Congress did not choose to make immigration policies unreviewable,” he said.
Neal Katyal, who also argued before the court on behalf of Hawaii Wednesday, pointed to the court’s previous decision, which directed the administration to make a finding that the individualized vetting process isn’t working.
Judge Richard Paez, another Clinton appointee, asked if the court’s prior decision was “too demanding.”
“I don’t think so,” Katyal said. “I think it’s something any president should be able to meet … All you said was ‘Make a finding that there is something bad going on, that this entry is harmful.'”
The Supreme Court order runs out if the justices refuse to hear an appeal of the 9th and/or 4th Circuit decisions in the case. If the court agrees to take the case, the order expires when it issues a decision.
The Richmond-based 4th Circuit Court of Appeals will hear arguments Friday in the government’s appeal of a separate order from a Maryland district court that partially blocked the ban.