A three-judge panel in the Ninth Circuit Court of Appeals seemed unwilling to reinstate President Trump’s controversial travel ban during oral arguments on Monday, raising the specter of a showdown at the U.S. Supreme Court.
The panel’s judges—Michael Hawkins, Ronald Gould, and Richard Paez—spent most of their time questioning both sides in Hawaii v. Trump about the applicability of Trump’s record of anti-Muslim statements, and about the scope of the federal statutes cited by the president as the legal basis for the travel ban. Unlike during oral arguments in a parallel lawsuit last week in the Fourth Circuit, relatively little attention was paid to the question of whether the plaintiffs had legal standing to challenge the order, which was a revised version of the administration’s original ban.
The state of Hawaii warned the panel of the reverberations its ruling could have if it overturns the lower court’s injunction, put in place by federal judge Derrick Watson earlier this spring. “If you rule for us, you leave intact the president’s powers, including every decision every president has made in our lifetimes, and you preserve a status quo that has existed for decades,” Neal Katyal, a high-profile appellate lawyer who argued on behalf of the state, told them. “If you rule for him, you defer to the president in a way that history teaches us is very dangerous.”
The Trump administration defended the executive order as a lawful exercise of the president’s immigration powers to bolster national security, an argument that usually receives broad deference from the courts. “This debate should go back to where it belongs: the political realm,” acting Solicitor General Jeffrey Wall told the court. But critics like the state of Hawaii, which filed the lawsuit on behalf of its university system and its foreign-born residents, argue instead that the order is aimed at fulfilling Trump’s discriminatory campaign pledge to stop Muslim immigration.
Looming over Monday’s arguments was Korematsu v. United States, the infamous Supreme Court case in which the justices upheld Franklin D. Roosevelt’s executive order on Japanese-American internment during World War II. At one point, Wall urged the panel to rely on the legal standard articulated in Kleindienst v. Mandel, a 1972 Supreme Court case. In Mandel, the Court ruled that immigration-related decisions by the executive branch need only a “facially legitimate and bona fide reason” to survive judicial scrutiny. That ruling established a low threshold for future presidents to overcome in immigration cases; in this one, national-security concerns cleared the threshold, the federal government has argued.
When Judge Paez asked Wall whether Korematsu would hypothetically survive under the Mandel standard, Wall disputed the question’s premise. “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,” he added, using the country as a legal metonym for the solicitor general’s office.
Katyal, a former acting solicitor general who in 2011 effectively recanted his predecessors’ defense of internment, found the historical resonance inescapable. “As Justice [Robert H.] Jackson said in the context of the First Amendment in a religious-freedom case, ‘The First Amendment was designed to avoid these ends by avoiding these beginnings,’” he told the panel in his closing remarks. “This very courthouse, which tried, convicted, and then later exonerated Gordon Hirabayashi 44 years ago, stands as a physical reminder about what is at stake.” Hirabayashi unsuccessfully challenged the constitutionality of a curfew for Japanese-Americans during World War II.
Hawaii v. Trump is one of multiple legal challenges against the second iteration of Trump’s executive order, which temporarily bars visa applications from six Muslim-majority countries and suspends the U.S. Refugee Admissions Program for 120 days. Trump signed the revised executive order in March, but Watson issued an injunction blocking it from going into effect. The Trump administration appealed the injunction to Monday’s Ninth Circuit panel.
This isn’t the administration’s first bout in the Ninth Circuit, which covers most of the western United States. Trump’s initial iteration of the travel ban prompted a frenzy of lawsuits in the chaotic weekend following its haphazard rollout in January. Multiple federal judges, including James Robart in Seattle, temporarily blocked the administration from implementing the executive order while the legal process unfolded. The federal government then appealed Robart’s injunction in Washington v. Trump to a three-judge Ninth Circuit panel in February, which unanimously upheld Robart’s ruling. The Trump administration opted then to rewrite the executive order instead of asking the Supreme Court to intervene.
Avoiding the Supreme Court may not be feasible for the administration this time. The Ninth Circuit is one of two federal appeals courts mulling the second travel ban this month. Last week, the Fourth Circuit deliberated whether to overturn a Maryland federal judge’s separate injunction against the executive order. If either federal appellate court upholds one of the nationwide injunctions, only the Supreme Court would be able to overturn it and allow the travel ban to go into force.
It’s not guaranteed the Court would agree to hear the case if the Trump administration asked it to intervene. A final decision could be almost a year away even if the justices accept the case. The Court’s summer recess begins next month, meaning the administration would likely have to wait until the next term begins in October before the justices could hear oral arguments in the matter. For now, the ban’s future could look a little clearer when rulings from the Fourth and Ninth Circuits are released sometime this month.