Judge compares Trump travel ban to Japanese American internment

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A federal appeals court reviewing President Trump’s revised ban on U.S. entry of travelers from six mostly Muslim countries on Monday gave few hints of how it planned to rule. But the panel asked some provocative questions, particularly from one judge who compared the ban to the order that sent Japanese Americans to U.S. internment camps during World War II.

Judge Richard Paez of the Ninth U.S. Circuit Court of Appeals asked the Trump administration’s lawyer at a hearing in Seattle whether President Franklin Roosevelt’s 1942 order incarcerating Japanese Americans would be defensible under the same standards he was applying to the travel ban.

Paez noted that Roosevelt’s order never mentioned Japanese Americans but was clearly aimed at them — just as challengers to the recent order contend it was aimed at excluding Muslims. “Would the (1942) executive order pass muster under your test today? Why not?” he asked.

From a religious perspective, said Jeffrey Wall, the acting U.S. solicitor general, Trump’s March 6 executive order was “neutral on its face and neutral in operation.” It was directed at the six nations — Iran, Libya, Somalia, Sudan, Syria and Yemen — after Congress had previously found that they pose a risk of terrorism, he said.

If a discriminatory order like the one that led to the incarceration of at least 110,000 Japanese Americans was before the court, Wall said, “I wouldn’t be standing here, and the United States wouldn’t be defending it.”

Wall’s adversary, Neal Katyal, representing the state of Hawaii, said Paez had made an apt comparison.

The government is asking the court to “defer to the president in a way that history teaches us is very dangerous,” Katyal said.

Judge Michael Hawkins observed that as a Justice Department lawyer in President Barack Obama’s administration, Katyal had often argued for judicial deference to the executive branch. “Why shouldn’t we be deferential to the office of president of the United States” on his intentions in issuing the order? he asked Katyal.

Trump’s words, the attorney replied, should be understood from the perspective of an “objective observer” — who, he argued, would interpret them as an unconstitutional ban on entry by Muslims.

Those words included Trump’s advocacy, as a presidential candidate, for a ban on all Muslim immigration to the United States.

The randomly selected three-judge panel — Paez, Hawkins and Ronald Gould, all appointees of President Bill Clinton — heard 70 minutes of arguments on the government’s appeal of a ruling by a federal judge in Hawaii, who said Trump’s order appeared to be religiously motivated and blocked its enforcement. Another federal appeals court in Richmond, Va., heard arguments last Monday after a similar ruling by a federal judge in Maryland.

The U.S. Supreme Court is likely to have the last word, perhaps by the end of this year.

Trump’s order would impose a 90-day ban on U.S. admission of residents of the six nations, whose Muslim populations range from 90 to 99 percent. It would also halt for 120 days all U.S. admission of refugees fleeing violence and hardship in their homelands.

Unlike Trump’s first executive order, which federal courts blocked, the revised version would exempt holders of U.S. visas and allow consular officers to issue individual exemptions in hardship cases. The first order also banned travelers from a seventh nation, Iraq, which was dropped because of U.S. support for Iraq in the region’s military conflicts.

The order would also reduce overall U.S. admission of refugees from 110,000 to 50,000 for the fiscal year that ends Sept. 30.

The Justice Department contends the ban was based on terrorism, not religion, and would give the administration time to devise tougher screening standards for entrants from zones of conflict.

The critical issue in the case is how far courts can go in examining Trump’s words and actions, as candidate and president, to determine the intent and impact of his order.

As a candidate, Trump followed his call for a ban on Muslim immigration by declaring that “Islam hates us.” When he signed the first version of his order on Jan. 27, which did not mention religion, he looked up and said, “We all know what that means.” A day later, former New York Mayor Rudy Giuliani, a Trump adviser, said the president had asked him to form a commission to find a legal way to enact a “Muslim ban.”

“Has the president ever disavowed his campaign statements?” Hawkins asked Wall, the government’s lawyer.

Trump “clarified, over time,” Wall replied, that “what he was talking about was Islamic terrorist groups and countries that sponsor or shelter them.” The president has broad legal authority over immigration and national security, he said, and courts should refrain from “psychoanalyzing things said on the campaign trail.”

But Katyal contended Trump has “rekindled his campaign statements” since taking office. He noted that the call for a ban on Muslim immigration remained on Trump’s campaign website until it was taken down last Monday, the day of the first appeals court hearing.

He also cited Trump’s Jan. 30 statement to a Christian Broadcasting Network interviewer that he would give priority to Christian refugees from Muslim nations, and his comment to rally-goers that the second version of his travel ban, which lawyers had drafted purportedly to meet prior judicial objections, was merely a “watered-down version” of his first order.

Does that mean, Paez asked Katyal, that a president who expresses anti-Muslim sentiments is “forever barred” from issuing a valid order restricting entry from largely Muslim nations?

Congress could accomplish the same thing by passing a law, Katyal replied. Or Trump could disavow his statements in a credible way, perhaps by following the example of President George W. Bush, who said in a speech six days after the Sept. 11, 2001, terrorist attacks that the assailants did not represent all Muslims, because “Islam is peace.”

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com

Twitter: @egelko