29 May, 2017
Trump's attempted travel bans have caused the number of refugees coming into the U.S.to plummet in the last two months, despite his executive orders largely being blocked in the courts.
The Justice Department separately appealed a different federal judge's decision to halt the 90-day travel ban to the 4th US Circuit Court of Appeals.
Trump immediately slammed the decision as "an unprecedented judicial overreach" and later tweeted about his frustrations with the West Coast-based 9th Circuit over an unrelated case. He joins us now. "The court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has", Judge Watson wrote.
JOEL ROSE, BYLINE: Sure, Audie.
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. And from the very beginning today the judges had tough questions for the government's lawyer.
The judges on Monday did not indicate when they would issue their ruling in the case, which is expected to reach the Supreme Court.
Three judges appointed by former President Bill Clinton - Michael Hawkins, Ronald Gould and Richard Paez - are due to hear arguments over whether to uphold a Hawaii judge's decision to block the ban in March. They also questioned whether they could consider Trump's campaign statements, with one judge asking if there was anything other than "willful blindness" that would prevent them from doing so. He generally listens to oral arguments electronically because of multiple sclerosis.
CORNISH: So what did the plaintiffs have to say?
"Has he ever stood up and said, "I've said before I wanted to ban all members of the Islamic faith".
The memo from Giuliani is sought in part because he created a commission at Trump's urging to find the "right way to do it legally", referring to a "Muslim ban". Spicer did not answer directly.
They asked a lawyer for the state of Hawaii challenging the ban about whether the national security rationale spelled out in the president's executive order neutralized any claim that the travel ban was motivated by discrimination. Let's listen to their lawyer, Neal Katyal. "And as the district court found, it would view them as the establishment of a disfavored religion of Islam". They also bolstered their national security argument by including examples of ongoing terrorism investigations against foreigners who legally entered the U.S.in recent years. "The real question, though, isn't the timing, but whether the two courts come out the same way".
At issue is how broad the executive branch's power is crafting such orders, and whether the order can be taken on its face given the broader context and earlier public statements of religious animus.
Trump has not been shy about criticizing judges who rule against him, but he seems to have particular ire for the 9th Circuit.
"The executive order is fully lawful and will be upheld".
In fact, former President Franklin Roosevelt's 1942 Executive Order 9066 did not order the specific detention of Japanese-Americans.
"This order is aimed at aliens overseas, who themselves don't have constitutional rights", Wall said during the hearing broadcast live on C-Span and other news stations.
For that reason - with the possibility for myriad concurring or dissenting opinions - it could take the 4th Circuit longer to rule, noted Carl Tobias, a law professor at University of Richmond law school in Virginia.
CORNISH: People have been talking about this case as though it's going to go to the Supreme Court, but what happens in the meantime? Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958.
And not only was Trump facing Democratic appointees, but he has also taken shots in the past at the 9th Circuit, criticism which the three judges may find hard to ignore. Three judges of the Ninth Circuit heard arguments on the appeal of a temporary injunction from a district court in Hawaii that put a stop to enforcing the second EO.
CORNISH: That's NPR's Joel Rose.
