A three-judge panel of the U.S. Court of Appeals for the 9th Circuit heard arguments Wednesday on the latest iteration of President Trump’s travel ban, pressing the government and those challenging the directive on the limits of the president’s power to implement the measure and their own authority to review his decisions.
The Supreme Court this week allowed the ban to fully take effect while the challenges to it make their way through the legal process. A final decision almost certainly will run through the justices.
Attorneys for the state of Hawaii, which is suing over the ban, and the Justice Department, which is defending it, attempted to make their case Wednesday to Michael Daly Hawkins, Ronald M. Gould and Richard A. Paez, the 9th Circuit judges appointed by President Bill Clinton, who are considering one of the legal challenges.
Neal Katyal, an attorney for the challengers, argued that among the legal problems of the “unprecedented and sweeping” directive was that the president had not made findings — as the law required — that people entering from the banned countries would be detrimental to the United States.
Justice Department attorney Hashim Mooppan argued that ban was crafted after an extensive, worldwide review of information that foreign governments provide the United States about their travelers, and it was necessary both to nudge countries to give the United States more data and to keep out those who might want to do the country harm.
The ban, the third version that Trump has put forward, affects various types of travelers from eight countries — Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Federal judges in two states had blocked the administration from fully implementing the measure until the Supreme Court intervened this week.
The Supreme Court, which has yet to decide the case on the merits, indicated it expected the appeals court to “render its decision with appropriate dispatch.” The U.S. Court of Appeals for the 4th Circuit is also weighing a separate challenge to the ban, and oral arguments are scheduled in that case for Friday.
The 9th Circuit had ruled against a previous version of Trump’s travel ban, although from the judges’ questions Wednesday, it was not obvious that they were leaning toward doing so again. Hawkins said of the latest ban, “This is a little bit different, isn’t it?” and pointed to the government’s process to develop it. Paez asked at one point if the court was “too demanding” of the government in its opinion on a prior version of the ban.
Gould said the judges “will try to get an opinion out as soon as practical.”