Three Key Quotes From the Ninth Circuit's Travel Ban 3.0 Hearing
Judges heard arguments Wednesday over the legality of the third iteration of President Donald Trump's travel ban.
December 06, 2017 at 07:39 PM
4 minute read
For the third time this year, judges at the U.S. Court of Appeals for the Ninth Circuit heard arguments over whether the president has the authority to bar a class of immigrants from entering the United States based on their nationality.
This time, at the courthouse in Seattle, a three-judge panel including Michael Hawkins, Ronald Gould and Richard Paez, considered the legality of President Donald Trump's Sept. 24 proclamation that barred the entry of foreign nationals from eight countries. Just Monday, the U.S. Supreme Court weighed in on the case too, allowing the proclamation to go into effect for now while the Ninth Circuit and Fourth Circuit, which is set to hear a similar challenge Friday, make their decisions.
However, the Supreme Court's order barely got a mention in the roughly hourlong hearing, which focused mainly on presidential authority under the Immigration and Nationality Act. The plaintiffs, which included the state of Hawaii as well as individuals and religious groups, were represented by Hogan Lovells' partner Neal Katyal and associate Mitchell Reich, while the Justice Department's Hashim Mooppan represented the government.
Here are three key quotes from Wednesday's argument:
“Let's assume the president made a mistake.” — Gould: Mooppan argued first, and Gould presented him with a key hypothetical. What if, the judge asked, the president made a mistake in how he interpreted the INA? Would the courts be able to review a challenge to his mistake?
Mooppan replied no, articulating the government's argument that the president's decisions on immigration, made pursuant to Section 1182(f) of the INA, are never reviewable by courts, except in some circumstances not at issue.
Mooppan repeatedly explained throughout the hearing that courts have zero role in reviewing the president's immigration decisions, even if those decisions are faulty or mistaken. If Congress wanted to change that, it can do so.
“This is a little bit different, isn't it?” — Hawkins: Later on, when Reich took the stand, Hawkins prodded him about how this version of the ban was different than others the court ruled against. The previous two versions, he said, barred entry of immigrants from certain countries based largely on “speculation,” whereas this time, the government engaged in a review of various countries' procedures and made specific determinations.
“What's wrong with that?” the judge asked.
The question gets to the main difference between these cases and prior travel bans, which is that the policy now in play, according to the government, is the result of a comprehensive review, which gives the president a good enough reason to bar certain nationalities.
Reich said the president was unable to show the current process is failing.
“Boy, that's a dog that really didn't bark.” — Katyal: When Katyal took the stand, he picked up where Reich left off. He referenced the court's June decision on the March 6 travel ban order, in which he said the judges made clear that for the president to be within his bounds to exclude immigrants by nationality, he must make “sufficient findings justifying” that their entry would be “detrimental to the national interest.”
Katyal said that though the court gave the government clear orders, and the government had ample time and engaged in a thorough review, the Sept. 24 proclamation still didn't meet the standard the court outlined. Katyal said the government dropped the ball, because despite the review and detailed order, Trump only found that certain countries have poor vetting procedures.
Later, when Mooppan stood for rebuttal, he said it was clear the president made a “finding” that the proclamation was necessary to prevent entry of nationals about whom the government lacks sufficient information to assess the risks they pose to the country. “You might disagree with the finding but you cannot disagree that the finding was made,” Mooppan told the judges.
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