Trump’s travel ban faces crucial test in federal appeals court

Protesters demonstrate in front of the Fourth U.S. Circuit Court of Appeals in Richmond, Va., where judges were considering the legality of the ban on travel from 6 mostly Muslim nations. Protesters demonstrate in front of the Fourth U.S. Circuit Court of Appeals in Richmond, Va., where judges were considering the legality of the ban on travel from 6 mostly Muslim nations. Photo: Steve Helber, Associated Press Photo: Steve Helber, Associated Press Image 1 of / 5 Caption Close Trump’s travel ban faces crucial test in federal appeals court 1 / 5 Back to Gallery

In the first federal appeals court test of President Trump’s revised ban on immigration from overwhelmingly Muslim nations, a government lawyer argued Monday that courts should avoid engaging in “psychoanalysis” to look for an underlying religious bias and instead defer to Trump’s judgments on national security.

“The president was operating at the height of his powers ... acting at the borders to protect our nation’s security,” Jeffrey Wall, the Justice Department’s acting solicitor general, told the Fourth U.S. Circuit Court of Appeals in Richmond, Va.

“This is not a Muslim ban,” Wall said of Trump’s March 6 executive order. To conclude otherwise, Wall said, federal judges in Maryland and Hawaii seized on “a handful of campaign statements” to conduct an “unprecedented ... kind of psychoanalysis” of Trump’s alleged motives.

But some members of the 13-judge court, said they couldn’t ignore Trump’s statements as a presidential candidate that he wanted to ban immigration by Muslims.

“All this stuff was reaffirmed after the election. ... He’s never repudiated it,” said Judge Robert King. He cited Trump’s comment when signing the revised ban — that everyone would “know what I mean” — and a statement by former New York Mayor Rudy Giuliani, a Trump adviser, that the president had told him to find a legal way to draft a “Muslim ban.”

The president’s “power over immigration must be exercised in a way that’s consistent with the Constitution,” including its ban on religious discrimination, said Judge Pamela Harris.

The court was reviewing a Maryland federal judge’s injunction against the executive order, which would prohibit U.S. entry from the six nations for 90 days. An earlier order by a judge in Hawaii, blocking both Trump’s immigration ban and his proposed 120-day freeze on all U.S. admissions of refugees, will be reviewed next Monday by a panel of the Ninth U.S. Circuit Court of Appeals at a hearing in Seattle.

The Ninth Circuit, based in San Francisco, released the names of the randomly selected panel Monday: Judges Michael Hawkins, Ronald Gould and Richard Paez, all appointees of President Bill Clinton.

During Monday’s hearing in Richmond, which lasted more than two hours, an American Civil Liberties Union lawyer came under intense grilling, mostly from the three judges on the panel appointed by Republican presidents. Nine judges, including King and Harris, were appointed by Democrats, and Chief Judge Roger Gregory got a recess appointment from Democrat Clinton and a lifetime appointment by Republican George W. Bush.

If courts can examine Trump’s statements as a presidential candidate to discern his motives, “can we look at his college speeches?” asked Judge Paul Niemeyer. “How about his speeches to businessmen 20 years ago?”

Judge Dennis Shedd asked why “the president, the executive branch, (was) not entitled to some deference” in concluding that a pause in travel from the six nations would reduce the threat of terrorism. Shedd also noted that Trump’s order would affect fewer than 10 percent of the world’s Muslims.

ACLU attorney Omar Jadwat replied that Muslims make up more than 90 percent of the population of the six nations, which he said is evidence of Trump’s real intent. Judicial deference to the president is not “a license to violate the establishment clause” that requires the U.S. government to remain religiously neutral, he said.

Trump’s order, a revision of a Jan. 27 order that was also blocked by federal courts, would temporarily halt admissions of anyone from Iran, Libya, Somalia, Sudan, Syria and Yemen, as well as refugees fleeing violence and hardship in their home countries. During the pause, the administration had said it would study methods of “extreme vetting” for entrants from dangerous areas, but Wall said the studies were not completed when the courts intervened.

The defining issue at Monday’s hearing, as in previous proceedings, was whether courts can look past the text of Trump’s order — which refers to incidents of terrorism and government deficiencies in the targeted countries — to his statements and other evidence of alleged discriminatory motives.

Wall noted that the six nations — plus Iraq, named in Trump’s earlier order but excluded from this one — had been the subject of a law signed by President Barack Obama that required their residents to obtain visas before entering the United States.

“Conditions in these countries have continued to deteriorate,” Wall said. He said Trump was merely seeking “a brief opportunity to assure that the protections are sufficient,” and that the legality of his order shouldn’t be “based on what we think was in the head of the president.”

Judge James Wynn replied that he was unaware of any previous case of a presidential candidate promising to exclude members of a particular religion and then issuing an order to that effect a week after taking office.

Jadwat, the ACLU lawyer, said the supposed rationale for Trump’s order had been undercut by his own Department of Homeland Security, whose recent report found no connection between nationality and the threat of terrorism.

Niemeyer retorted that if opponents of Trump’s order, and the judges who blocked it, had their way, “you’d have the judiciary and all the various judges in the country supervising how the executive carries out national security.”

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

Twitter: @egelko