Fourth Circuit Oral Arguments in Travel Ban Case: Too Close to Call
Click here to watch the oral arguments before the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, in International Refugee Assistance Project v. Trump. The arguments are entertaining indeed. Here are links to the bios of the Fourth Circuit judges, which helped me to put some of the questions into perspective.
The Fourth Circuit heard oral argument in International Refugee Assistance Project v. Trump, a case concerning President Trump’s revised travel ban executive order issued in March 2017. The court was considering an appeal of a Maryland U.S. District judge’s ruling blocking the president’s ban on issuing visas to citizens of six Muslim-majority countries. President Trump’s revision imposes a 90-day ban on travelers, but excludes Iraq from the list of countries and green card holders. It also applies only to those seeking new visas, not those with existing visas, and replaces an indefinite ban on refugees from Syria with a 120-day freeze.
The first executive order issued in January 2017 temporarily barred U.S. entry for citizens of the Muslim-majority countries Iraq, Iran, Somalia, Sudan, Libya, Yemen, and Syria, and suspended the U.S. refugee program.
Amy Howe has a thorough recap of the arguments on SCOTUSBlog. As she concludes,
“Next week, the U.S. Court of Appeals for the 9th Circuit will hear argument in the government’s challenge to an order by a Hawaii judge blocking the implementation of the executive order. It is hard to predict when the two courts of appeals will issue their rulings, but the cases could move quickly to the Supreme Court after that.” (emphasis added).
Based on questions by Judge Barbara Keenan, Marty Lederman on Just Security offers a “straightforward” statutory argument for striking down the travel ban.
Acting Solicitor General Jeffrey Wall argued the case for the United States. Omar Jadwat of the ACLU argued the case for the plaintiffs. I listened to the arguments. It was, as expected, a “hot bench.” Both sides faced aggressive questioning. Wall had a formidable task in trying to try to distance the revised travel ban from Donald Trump’s statements as a candidate and as President about a “Muslim ban.” Jadwat faced skeptical questioning about the standing under Article III of various plaintiffs. It was interesting to hear the debates about the applicability of Supreme Court rulings in Kleindienst v. Mandel (1972) and Kerry v. Din (2015) and whether the President’s order should be reviewed and, if so, the standard of review. . Given the high levels of skepticism in the questions to both advocates, I found it hard to predict who would win. Stay tuned!
KJ