A government lawyer met considerable skepticism as he tried to persuade a federal appeals court on Monday to strictly separate what Candidate Trump and President Trump said about keeping Muslims out of the United States.
At the same time, a lawyer for the challengers to Trump’s temporary ban on entrants from six Muslim-majority Mideast nations struggled to answer when repeatedly pressed to say how long the “taint” of anti-Muslim statements would disable the president from developing immigration and national security policy in the future.
In a hearing by the U.S. Court of Appeals for the Fourth Circuit, which lasted more than twice as long as the scheduled one hour, the 13 judges clearly came away with the sense that the constitutional conflict before them had grown well beyond the specifics of President Trump’s revised immigration restrictions.
If there was an overall theme to the hearing, it was that the Trump style of governing as well as campaigning posed a stern test of how to handle the Constitution’s division of fundamental powers, especially between the courts and the White House.
The president’s lawyer pleaded energetically for judicial deference, the challengers’ lawyer pleaded just as fervently for judicial skepticism.
Because the hearing was broadcast by radio, with no dependable way for the listeners to know which judges were asking the questions (unless a lawyer used their names in responding), the audience was drawn more to hearing the substance of what was said. Even so, the drama of a major court battle came through.
The hearing appeared divided almost as if it were two separate hearings. In the first hour, government lawyer Jeffrey B. Wall was on the defensive for much of the time, but then, the second hour put the other lawyer – Omar C. Jadwat of the American Civil Liberties Union lawyer – in the same challenged posture.
If there was a difference, it was that more of the judges joined in confronting Wall than the few who tested Jadwat, although there was no difference in the intensity in either part of the questioning.
The questioning of Wall focused mostly on what President Trump’s purpose was in issuing the revised version of his executive order after the first had been blocked by the courts. And, rather than focus exclusively on the wording of the revised order, as Wall had tried to persuade the judges to do, the jurists kept quoting Trump as a candidate and then as the serving president in describing what this initiative was all about.
The repeated inquiry from the bench was whether Trump’s anti-Muslim comments during the campaign took away, or at least put into serious question, the legitimacy of his immigration restrictions.
Wall sought to portray what Trump has said since actually taking the oath of office and beginning to govern as more “ambiguous” than his campaign rhetoric, and worked hard to try to convince the judges that they had a duty to be more tolerant of what the head of an equal branch of government had said about actual policy.
The questioning of Jadwat aimed mostly at how far back in Trump’s pre-presidential past it was proper to look to find his motive when he, as president, started taking action on immigration.
And the judges confronting the ACLU lawyer tried to compel him to say, precisely, whether Trump would ever be able to take action on immigration policy without risking repeated court battles over what his real intentions were.
At one point, the probing of Jadwat’s argument came close to the absurd when he was asked if it would make a difference, to the challengers, if Trump were to publicly say he was sorry for his anti-Muslim remarks, whether it would make a difference how often he apologized, and whether it would make a difference if he seemed sincere or insincere in his apologies.
The Fourth Circuit Court is reviewing a Maryland federal judge’s nationwide order blocking enforcement of the revised Trump order’s 90-day suspension of arrivals from the six Mideast nations. The government has asked the Circuit Court to put the judge’s order on hold, while it reviews the case, and ultimately to uphold the presidential order.
Next Monday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit will hold a hearing on the revised Trump order. In that case, a federal judge in Hawaii blocked enforcement not only of the suspension of immigrants from the Mideast countries, but also the 120-day suspension of the arrival of any refugees from anywhere in the world.
The rulings that emerge from one or both of the two appeals courts are likely to be appealed to the Supreme Court.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.