Trump Travel Ban Faces Second Round at West Coast Appeals Court

(Bloomberg) -- Attorneys from the U.S. Justice Department will again come before a federal appeals court to try to salvage President Donald Trump’s order banning travel from six mostly Muslim nations, after a judge said it appeared to be discriminatory.

The hearing gets underway at 9:30 a.m. in Seattle. It’s the second time a three-judge panel from the Ninth Circuit Court of Appeals will consider Trump’s travel ban.

In February, a different panel of judges from the court ruled against the president’s first executive order, saying that the government had failed to make its case that a temporary freeze on the travel ban should be lifted. The judges also called into question presidential power to limit immigration the way Trump is trying to do.

It’s the second time in less than two weeks that the Justice Department has been tasked with urging an appeals court to let Trump enforce his revised travel restrictions. On May 8, a 13-judge panel in Richmond, Virginia, heard from lawyers for the U.S. and a civil rights group on questions of presidential power, religious bias and the threat of terrorism.

Trump’s first order, a broader decree that came a week after his inauguration, led to chaos in January at airports across the country.  The Justice Department argued its revised March 6 edict addressed earlier issues that led judges to reject Trump’s original Jan. 27 executive order. While the impact of the second order was mitigated by exempting green card holders, the policy was immediately challenged and blocked before it could be enforced.

U.S. District Judge Derrick Watson in Honolulu concluded that the administration had tried to “sanitize” the original order, setting the stage for the government’s appeal before the Seattle panel. A separate order by a Maryland judge blocking implementation of the revised travel ban is what was reviewed by the Richmond-based appeals court last week.

At the heart of the legal arguments is the question of whether Trump’s comments as a candidate can be used as evidence that his travel order was founded on religious bias, in violation of the First Amendment.

The Justice Department argues that his remarks as a candidate aren’t relevant to his actions as president. Until last week, the Trump campaign website included language promising a ban on Muslim immigrants.

That legal issue is likely to reach the Supreme Court. In the meantime, lawyers from around the country who are challenging Trump’s order are likely to press ahead with efforts to gather evidence that could help prove that Trump’s order was founded on bias. Last week, a federal judge in Detroit ordered the administration to disclose a memo from former New York City Mayor Rudy Giuliani.

While running for president, Donald Trump asked Giuliani to form a commission that would help draft a “Muslim ban” to “show [him] the right way to do it legally,” according to a court filing by the Arab American Civil Rights League. The commission then recommended that “nationality be used as a proxy for religion,” the group said in the filing.