President Donald Trump’s own statements and deference to the Executive regarding travel ban Executive Orders are again the focus of oral arguments before the U.S. Court of Appeals for the Ninth Circuit. On May 15, 2017, in State of Hawaii v. Trump, the Ninth Circuit heard arguments for and against the President’s revised travel ban Executive Order (EO).  In February, the same circuit had denied the government’s request to reinstate the initial travel ban EO, which had been blocked by a lower court.

This panel, which included Bill Clinton-appointees Judges Ronald Gould, Richard Paez, and Michael Hawkins, questioned both sides aggressively. Judge Paez suggested that too much deference to the Executive could lead to situations like the now-discredited internment of Japanese-Americans that was upheld by the Supreme Court in Korematsu v. United States in 1944. Acting U.S. Solicitor General Jeffrey Wall, who a week earlier had defended the travel ban in the Fourth Circuit Court of Appeals, responded, “You’re not anywhere approaching Korematsu.” 

Judge Hawkins asked if the President had ever renounced his statements regarding a “Muslim ban.” Wall asserted the President’s view on the topic had evolved. Neil Katyal, representing the plaintiffs, said there had never been a renunciation, noting that Trump’s campaign website had featured a news release that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States” that “just happened to disappear moments before the Fourth Circuit argument last week.”

Judge Gould suggested that statements from the Attorney General and the DHS Secretary supporting the Executive Order as a necessary response to national security threats might outweigh any possible anti-Muslim motive on the President’s part. Katyal disagreed. When he also pointed out that the judges were bound in some respects by the earlier Ninth Circuit opinion, Judge Paez, reported to be the most liberal judge on the panel, responded, “You read a little more into that case than I did.”

In the earlier en banc hearing in the Fourth Circuit Court of Appeals, International Refugee Assistance Project v. Trump, some of the judges (13 in all, two had recused themselves) raised similar concerns. Judge Henry Floyd asked whether “anything other than willful blindness” should prevent the Court from looking behind the plain words of the Executive Order.

These two are not the only cases percolating through the courts on the travel ban. U.S. District Court Judge Tanya Chutkan in D.C. postponed ruling on an injunction in Pars Equality Center v. Trump, saying she was “inclined to agree with Plaintiffs that they are likely to succeed on the merits of their claims,” but there was a question about whether the harms were imminent since the travel ban is currently enjoined. She concluded, “In the event that both injunctions [in the Ninth and Fourth Circuits] are overturned, this court is prepared to issue a ruling without delay.”

The blocked travel ban may reach the Supreme Court, when Justice Neil Gorsuch will have a hand in the decision. Justice Gorsuch, who ascended to the Court in April, had previously criticized the Chevron deference doctrine in Gutierrez-Brizuela v. Lynch. Commentators say he leans toward limiting the executive branch’s authority to interpret federal statutes. However, as the Deputy Associate Attorney General in the Bush Administration, he defended the use of executive power in national security situations.