May 16, 2017

Trump’s Muslim Ban Back on Trial in the Ninth Circuit Today

WASHINGTON, D.C. — Yesterday, a three-judge panel appointed by former President Bill Clinton heard oral arguments in the Ninth Circuit Court of Appeals as they consider whether to uphold a lower court decision from Hawaii placing a nationwide freeze on the Muslim ban. For the second time in the past week, President Trump’s inflammatory campaign statements targeting Muslims faced intense judicial scrutiny as the acting Solicitor General struggled to make the unreasonable sound reasonable.

Acting Solicitor General Jeffrey Wall, who also defended the ban in the Fourth Circuit last week, told the three-judge panel that “over time, the president clarified that what he was talking about was Islamic terrorist groups and the countries that sponsor or shelter them.” In what largely traced the argument made last week in Richmond, Wall continued defending the government’s position that the judiciary should disregard campaign statements by Donald Trump. “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.”

Neal Katyal, solicitor general under the Obama administration, represented Hawaii and challenged Wall, saying the President has never disavowed his statements towards Muslims, a point which Judge Richard Paez raised earlier in the hearing.

“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 argued. “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.”

“Anybody who was watching the President knows ‘what that means,’” said Legal Counsel for the National Iranian American Council, Shayan Modarres. “President Trump was giving a subtle wink and nod to his supporters that he is on a mission to fulfill his campaign promise to ban Muslims from entering the United States, irrespective of how it violates the Constitution.”

Further pushing back against Wall with President Trump’s own statements, Katyal said, “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.'”

In a succinct, yet high-impact, summary of the absurdity of this executive order against Iranians and Muslims, Katyal reminded the panel, “No president has done this.”

The fate of the Muslim ban is now in the hands of the Fourth and Ninth Circuits. If both courts decide to overturn the lower court injunctions, the National Iranian American Council, together with our co-plaintiff partners PAAIA, IABA, and Pars Equality Center stand ready to immediately take action and ensure that the nationwide freeze on the Muslim ban remains in effect.

Even as the legal challenges unfold, the Trump administration is actively searching for new ways to get around the courts and impose the unconstitutional Muslim ban in other ways. Earlier this month, an “extreme vetting” Information Collection Request proposal was unveiled by the Department of State in an emergency request to the Office of Management and Budget (OMB).

“With the huge losses piling up against President Trump, the administration is getting desperate for a win, even if it is at the expense of fundamental American values,” Modarres said. “We saw that with the GOP health care bill, and we’re seeing it in the desperation to impose this ‘new and improved’ Muslim ban through ‘extreme vetting.’”  

The proposal, among other things, seeks social media identifiers and platforms, as well as 15 years of travel history including receipts, boarding passes and other supporting documentation. It is still unclear which visa applicants will be subjected to the “extreme vetting” requirements, but consular officials will be given a great deal of unfettered discretion and potential for abuse to make travel from Muslim-majority countries difficult or – in many cases – impossible.

The last day to submit public comment to OMB is May 18, and if granted, the emergency approval would be valid for 180 days. In an order staying resolution of a preliminary injunction motion issued last week, U.S. District Court Judge Tanya S. Chutkan of the Washington D.C. Circuit said she was “inclined to agree” with Iranian-American plaintiffs that the revised executive order was unconstitutional. The Fourth and Ninth Circuits have not indicated when they will be issuing their decision.

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