San Francisco-based federal appeals court will hear arguments Monday on whether President Trump’s revised travel ban violates a constitutional prohibition against religious discrimination.
The hearing in Seattle before a panel of the U.S. 9th Circuit Court of Appeals, scheduled for one hour starting at 9:30 a.m., will be broadcast live on C-SPAN and streamed from the court’s website.
Gould, 70, based in Seattle, is a moderate. He generally listens to oral arguments electronically because of multiple sclerosis. Hawkins, 72, based in Phoenix, is considered moderate to liberal. Paez, 70, who serves in Pasadena, is viewed as the most liberal of the three.
The judges were selected from a computer-generated random list of all panels sitting during the month of May, the earliest the case could be heard.
Acting U.S. Solicitor Gen. Jeffrey B. Wall is expected to argue for the Trump administration, and Neal Katyal, a Washington-based lawyer and former acting solicitor general under President Obama, will represent the challengers.
The court is weighing Trump’s appeal of a March decision that put a nationwide hold on his executive order barring U.S. entry by or visas for nationals of Iran, Syria, Sudan, Libya, Somalia and Yemen for 90 days and blocking all refugees for 120 days.
Hawaii-based U.S. District Judge Derrick K. Watson issued a prelimidnary injunction after concluding there was ample evidence to show that anti-Muslim sentiment motivated Trump’s action.
Watson relied on statements Trump and his advisors made about his proposed “Muslim ban” during his campaign and after his election. The judge called the evidence of animus “significant and unrebutted.”
“The court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has,” Watson wrote.
The state of Hawaii and Dr. Ismail Elshikh, the imam of the Muslim Assn. of Hawaii, challenged Trump’s order, which was a revision of an earlier, broader ban that the 9th Circuit blocked on due process grounds.
The revised order targets six instead of seven countries (Iraq was included in the original), makes no mention of religion, exempts green-card holders and allows for exceptions in certain cases.
Hawaii argued that the new order would still hurt the fight against terrorism and create difficulties in the recruitment of university students and faculty.
Elshikh said the order stigmatized Muslims by creating the impression that their religion was “disfavored.”
By focusing on nationality, Trump’s order would bar a Syrian national who had lived in Switzerland for decades but not a Swiss national who had immigrated to Syria during the civil war, the challengers argued.
They also cited a Feb. 24, 2017, draft report from the Department of Homeland Security. The report said citizenship was an “unlikely indicator” of future terrorism and few individuals from the targeted counties have been involved in terrorism in the U.S.
Lawyers for the Trump administration have asked the 9th Circuit to permit enforcement of the presidential order, which the court is considering on an expedited schedule.
The administration has argued that presidents have wide authority over immigration matters and courts are forbidden from second-guessing the executive branch on matters of national security.
Trump’s order is simply intended to keep Americans safe while the administration studies the adequacy of security measures, Department of Justice lawyers have said.
The revised order cites the example of a native of Somalia who was brought to the U.S. as a refugee when he was a child and later became a citizen. He was sentenced in 2014 to 30 years in prison for attempting to use a weapon of mass destruction.
Many groups, most opposing Trump’s action, have weighed in on the case in friend-of-the-court briefs.
Those urging the 9th Circuit to continue blocking the travel ban include the American Bar Assn., former national security officials, technology companies, religious organizations, 165 members of Congress, refugee assistance groups, law professors and an organization that arranges for ill children in Iran to receive medical care in the U.S.
Attorneys general from 16 states, including California and Illinois, also sided with Hawaii.
A coalition of nonprofit gun groups, advocates of English-first language policies, and border control foundations sided with Trump, as did an immigration reform institute.
Fourteen states — including Alabama, Arizona and Montana — and Mississippi’s governor also urged the 9th Circuit to permit enforcement of Trump’s directive.
The Virginia-based 4th Circuit Court of Appeals, considering an appeal of a similar ruling by a Maryland judge, heard arguments this month. A decision by that court is pending.
The dispute over the travel ban is expected to eventually be heard by the U.S. Supreme Court.