'No president has done this': US appeals court weighs Trump's controversial travel ban
Jeffrey Wall told the 9th US Circuit Court of Appeals in Seattle that Trump's travel ban should be judged based on its text and that Trump's statements during the election were "not statements in an official capacity."
"People say things on a campaign trail," Wall said. "We shouldn't start down the road of psychoanalyzing what people meant on the campaign trail."
Wall argued that the Supreme Court's 1972 ruling in Kleindienst v. Mandel determined the president has the authority to deny the entry of noncitizens based on "facially legitimate and bona fide reasons."
Trump's revised travel ban, Wall said, withstands the Mandel test because it was signed with the country's national-security interests in mind.
"You've got to have an affirmative showing of bad faith" on the part of the president, Wall said. "Whatever the bad-faith exception is, to say that the commander in chief, head of the executive branch, and multiple members of the Cabinet acted pretextually, I think you ought to require the strongest showing for that kind of remarkable holding."
The court's three judges - Ronald Gould, Richard Paez, and Michael Hawkins - seemed to be aware of the unique nature of this case, Hawaii v. Trump.
"Is there any case - there is no case like this, is there?" Paez said.
Wall said that "no one has ever attempted to set aside" a "neutral" law based on "campaign-trail comments."
Representing Hawaii, Neal Katyal, who was acting solicitor general under the Obama administration, pushed back on Wall's statements, saying the president never disavowed his comments about Muslims, which critics said were discriminatory.
In December 2015, Trump issued a statement calling for a "complete and total shutdown" of Muslims entering the US. He later said he believed "Islam hates us" and that the US couldn't "allow people coming into this country who have this hatred of the United States."
When Paez said those statements were made "during a highly contentious" election, Katyal brought up the district court's ruling that the president "rekindled" his campaign trail statements after taking office.
Katyal said that there was "no such statement" from Trump in which he disavowed his previous statements. He added that Trump made discriminatory remarks about Muslims "both pre- and post-inauguration."
"First, when he issued the first executive order, he read the title of the first executive order, looked up at the camera and said, 'We all know what that means,'" Katyal told the judges. "And that is a reference to something else. And indeed, when he issued both executive orders, he had left on his website that very statement about the complete and total shutdown of Muslims.
"Even last month, the president said it's a lot easier for Muslims to immigrate than Christian refugees from the Middle East, and that he's 'going to be helping Christians, big league,'" Katyal said.
NBC News' Hallie Jackson asked press secretary Sean Spicer during Monday's press briefing whether Trump would disavow his previous statements about Muslims.
"Right now, the president's focused on making sure that we make the appropriate arguments to get the ban in place," Spicer replied.
In arguing on behalf of Hawaii, Katyal said, "I think the question is: What would the objective observer view these statements as? And as the district court found, it would view them as the establishment of a disfavored religion of Islam."
Paez also touched upon the broad nature of Trump's travel ban.
"When I read Mandel, it's clearly dealing with a specific application of standards to a specific visa denial, and that's not what we have here at all," Paez told Wall.
"In the context of this case, the executive order is an extremely broad order," Paez said. "We're not dealing with an individual one-off determination by a consular officer."
Wall rebutted the idea it was extremely broad, pointing to an Obama administration policy as precedent.
"But how many nationals does it apply to in those countries?" Paez said. "A large number."
"Well, whatever the number of nationals who try to travel to the country and can't otherwise obtain waivers, we don't know yet, obviously, because we haven't been able to implement the order," Wall said.
Katyal pointed to Washington v. Trump, in which US District Judge James Robart issued a temporary restraining order on the first executive order and later a preliminary injunction, which the 9th Circuit Court of Appeals upheld. Katyal said the case nullified Wall's arguments that the second travel ban was issued for national-security reasons and should be judged on its face value.
He added toward the end of the hearing that the case's circumstances were unique because of Trump's statements before and after taking office.
"This is a very limited, you know, and a really unusual case in which you have these public statements by the president," Katyal said. "Indeed, if you affirm the district court, there's not a thing that any president has done in our lifetime that would be unconstitutional.
"No president has done this," Katyal added.
The case was brought to the 9th US Circuit Court of Appeals after Hawaii District Judge Derrick Watson issued an injunction in March halting the implementation of Trump's revised travel ban, one day before it was set to go into effect.
Around the same time, a Maryland judge issued a separate ruling that stopped the enforcement of certain aspects of the ban. Both the Hawaii and Maryland judges said the executive order discriminated against Muslims.