A Trump administration lawyer defending the latest travel ban on Friday was pressed to explain how the court could separate the president's latest tweets from the government's assertions that its new policy does not target Muslims.
In lively, aggressive questions, several judges on the U.S. Court of Appeals for the 4th Circuit pointed to the president's tweets last week sharing inflammatory anti-Muslim videos posted by a far-right British activist.
"Do we just ignore reality and look at the legality to determine how to handle this case?" said Judge James A. Wynn Jr.
"The president has continued to make statements that some people regard to be anti-Muslim after the issuance of this order," said Judge Diana Gribbon Motz. "Should we be surprised that it might be construed as an anti-Muslim order?"
Deputy Assistant Attorney General Hashim M. Mooppan acknowledged that Trump's commentary on Twitter represents the president's official statements but said the content of those messages is not "legally relevant." The third iteration of the ban, he said, is based on a months-long, worldwide review of information other countries share with the United States to vet visa applications.
"There's no way you can conclude this is a Muslim ban," Mooppan told the court during a two-hour oral argument at the 4th Circuit in Richmond.
Even as Mooppan faced tough questions at the 4th Circuit about the president's statements, the judges acknowledged that no matter their findings, the Supreme Court is watching and has suggested it will have the final word.
In the lead-up to the argument on Friday, the administration got a big boost from the Supreme Court, which granted the president's request to fully enforce the ban for certain residents of six mostly Muslim countries while challenges in lower courts play out.
Two lower courts had partially blocked the third iteration of the president's order, permitting the administration to keep out only those without close ties to people or institutions in the United States.
ButThe unsigned opinion from the Supreme Court on Monday lifted injunctions issued by judges in Hawaii and Maryland and allowed the government to deny visas even if the applicants have bona fide relationships — a definition that includes grandparents, cousins, aunts and brothers-in-law.
The arguments Friday at the 4th Circuit come just two days after the Hawaii challenge was heard by a three-judge panel of the 9th Circuit in Seattle. Although the justices did not include their reasoning on Monday, the order is a positive sign for the administration if the high court is asked to review the merits of the policy.
Only two justices, Ruth Bader Ginsburg and Sonia Sotomayor, noted their dissent.
At the 4th Circuit on Friday, Mooppan pointed out that challengers had alerted the Supreme Court to the recent tweets in a filing and said those statements had apparently not dissuaded the high court from lifting the injunctions.
A panel of 13 judges was considering the version of Trump's policy that indefinitely bans certain travelers who are citizens of Syria, Libya, Iran, Yemen, Chad and Somalia. The latest ban also bars a much smaller number from North Korea and Venezuela, but they were not affected by the injunctions.
This is the second time the full 4th Circuit has reviewed the president's immigration authority. The administration was forced to rewrite earlier travel ban versions after judges determined the orders were unconstitutional. In the last go-round in May, the court said in a 10-to-3 ruling that the travel ban "drips with religious intolerance, animus and discrimination."
The toughest questions for the challengers on Friday came from the three judges who were in the minority in the May ruling. Judges Paul V. Niemeyer and G. Steven Agee aggressively pressed attorney Cecillia D. Wang, the ACLU's deputy legal director, about why the court shouldn't defer to the president's broad authority when it comes to national security and immigration.
"Where do we get the right to review the president's foreign policy decision?" Niemeyer said.
Two other judges suggested that the court may be more limited in its ability to review the latest version because it was designed based on recommendations from homeland security officials concerned about the lack of information from the banned countries.
"The government has taken great pains to investigate what exactly are the threats that are posed," said Judge Barbara Milano Keenan. "It arguably can be illogical, it can be flawed," she said, "but the president can do it, can't he, if he makes the required findings?"
Wang told the court that the government still cannot "single out one religion for disfavor" in violation of constitutional protections. The latest version is more onerous, she said, because it is "no longer a pause, but an indefinite ban" affecting more than 150 million people.
In court filings, the administration said challengers also have not shown how their constitutional rights are directly affected by the travel ban.
"None of their relatives or other aliens with whom they have a bona fide connection has actually been excluded yet by virtue of the proclamation," according to the Justice Department filing.
The individuals challenging the ban are U.S. citizens and lawful residents whose relatives are seeking visas. Among them is an Iranian engineer who has lived in Maryland since 2012 with his wife, a researcher at the National Institutes of Health. His wife is seeking a visa for her Iranian mother, who she has not seen in two years.
"It feels especially unjust and injurious that even while I am contributing to helping the government do its work, the government is now targeting me and telling me that my family and I do not belong here," according to a statement filed in court by the engineer who works on major government contracts.
Another plaintiff is a researcher in pharmacology in Ohio who was born in Syria and has lived in the United States since 2001. Sumaya Hamadmad is trying to bring her father-in-law, also of Syria, to the United States for cancer treatments and to get to know his young grandchildren.
According to Hamadmad's statement in court, "It is painful for all of us that he lives so far away and may be separated from us indefinitely."