Judge at Trump travel ban hearing asks of internment camps

Updated 12:05 pm, Monday, May 15, 2017

As a federal appeals court considered President Trump’s second attempt to ban U.S. entry of anyone from selected nations with overwhelmingly Muslim populations Monday, a judge on the panel compared it to another president’s order sending all Japanese-Americans to U.S. internment camps as supposed threats to national security.

“Would the (World War II) executive order pass muster under your test today? Why not?” Judge Richard Paez of the Ninth U.S. Circuit Court of Appeals asked the government’s lawyer at a hearing in Seattle.

If that order was before the court, “I wouldn’t be standing here and the United States wouldn’t be defending it,” replied acting U.S. Solicitor General Richard Wall. Trump’s order, he insisted, is far different from the order that led to the incarceration of Japanese-Americans.

Paez countered that the order by President Franklin D. Roosevelt was “facially neutral” but was targeted at Japanese-Americans — just as challengers to Trump’s order contends it was aimed at excluding Muslims. Federal judges in Hawaii and Maryland have blocked the March 6 order from taking effect, citing Trump’s call for a ban on Muslim immigration as a presidential candidate, his selection of the six nations and comments by some of his advisers.

But Wall said Trump’s order was “neutral on its face and neutral in operation,” applying to entrants from nations that Congress has found to pose a heightened threat of terrorism. Courts should not use Trump’s campaign statements to engage in “second-guessing” his supposed motives, “which they’re not equipped to do,” he said.

Another panel member, Judge Michael Hawkins, asked whether Trump “ever disavowed his campaign statements” calling for the Muslim ban. The statements remained on Trump’s campaign website until they were taken down last Monday, the same day another appeals court in Virginia heard arguments on the government’s appeal of the Maryland ruling.

But Hawkins also asked Neal Katyal, lawyer for the state of Hawaii, “Why shouldn’t we be deferential to the office of president of the United States” on his intentions in issuing the order.

Trump’s words, Katyal replied, should be understood from the perspective of an “objective observer” — who, he argued, would interpret them as an unconstitutional ban on entry by Muslims.

Monday’s 70-minute hearing focused on the government’s appeal of the Hawaii ruling. The panel’s three judges questioned lawyers for both sides extensively and did not say how, or when, they intended to rule. The U.S. Supreme Court will have the last word, perhaps by the end of this year.

Trump’s order would bar entry by residents of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days, and would also halt for 120 days all U.S. admission of refugees fleeing violence and hardship in their homelands. Unlike his first executive order, which federal courts blocked, it would exempt holders of U.S. visas and allow consular officers to issue individual exemptions in hardship cases. It would also reduce overall U.S. admission of refugees from 110,000 to 50,000 for the fiscal year that ends Sept. 30.

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com. Twitter: @egelko

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