One of President Trump’s top priorities will get a test in court Monday when a federal appeals court in Richmond, Va., hears arguments about the legality of his revised travel ban.
His first executive order restricting visitors from a handful of majority-Muslim countries provoked chaos at airports across the country in January. Federal judges stepped in to block the order, partly because it included legal permanent residents, who have rights under the U.S. Constitution.
Weeks later, the White House issued a new order, dropping Iraq from the list of countries whose travelers faced restrictions and making clear green-card holders would not be covered.
But those changes were not enough for immigrant advocates and refugee aid groups, who continue to challenge the revised travel ban as an unconstitutional attack on Muslims.
“President Trump publicly committed himself to an indefensible goal: banning Muslims from coming to the United States,” wrote lawyers for the International Refugee Assistance Project.
Refugee groups and individuals separated from family members overseas said they are taking the president at his own word: trying to use public statements by Trump and his aides during the campaign and after to prove the order is motivated by religious animus.
Omar C. Jadwat, a lawyer at the American Civil Liberties Union, will handle the oral argument in Richmond for the plaintiffs. They claim the new executive order violates the Constitution’s Establishment Clause, which requires the government to adopt a neutral approach to religion, and a 1965 federal immigration law that bars discrimination on the basis of national origin.
The Justice Department is countering that the president enjoys sweeping authority at the border — an outgrowth of his responsibility to protect and defend national security. The court filing by the Trump administration described the revised order as a “temporary suspension of entry,” or a chance to pause and come up with better vetting procedures.
Acting Solicitor General Jeffrey B. Wall will argue that the court doesn’t need to delve any deeper into statements by the president or his advisers, because national security alone is a legitimate basis for the travel ban. The order itself makes no mention of religion, the government’s court papers said.
But 42 former national security officials filed their own court brief to disagree. They said there’s no legitimate basis for restricting visitors from the six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Actually, their filing said, not a single American has died in a terrorist attack on U.S. soil at the hands of someone from those six nations in the past 40 years.
On the other hand, several states including Alabama, Arizona, Florida, South Carolina and Texas have weighed in on behalf of the Trump administration.
No court ruling is expected Monday from the U.S. Court of Appeals for the 4th Circuit. But that case does not signal the end of the road. In fact, in one week, on May 15, a different federal appeals court, the 9th Circuit, will hear arguments in a similar case brought by the state of Hawaii.
The U.S. Supreme Court could be the ultimate decider.