President Trump has directed most of his ire over his blocked executive orders on travel and refugees toward the Ninth Circuit Court of Appeals, the sprawling federal appeals court on the West Coast that he’s said should be “broken up.” But it’s not the only one mulling the latest order’s constitutionality.
The Fourth Circuit Court of Appeals heard oral arguments on Monday in International Refugee Assistance Project v. Trump, one of multiple cases challenging the second version of the executive order, which was issued in March. The lawsuit was filed by current visa holders who said they and their family members would be harmed if the order went into place, as well as by nonprofit organizations that work with refugees.
Many of the judges on the court, which covers Maryland, the Virginias, and the Carolinas, seemed skeptical of the Trump administration’s argument that the order should receive the broad latitude typically granted by the federal judiciary to the executive branch in national-security cases. Others sharply challenged the plaintiffs’ lawyer on whether his clients had the legal standing to challenge the portion of the executive order involving visa restrictions.
Jeffrey Wall, the principal deputy solicitor general, argued that the order should survive under a relatively lenient standard first articulated in Kleindienst v. Mandel, a 1972 Supreme Court case on barring communists from entry into the United States. That standard says that the government must only provide a “facially legitimate and bona fide reason” for certain immigration-related decisions—an easy burden for the executive branch to meet. The Trump administration has frequently insisted the order is necessary to protect the country from terrorism. Wall also said the revised order shouldn’t be considered a “Muslim ban,” as its critics have described it. “Its text doesn’t have anything to do with religion,” he told the judges. “Its operation doesn’t have anything to do with religion.”