Judge asks if WWII executive order would pass muster today.
SEATTLE — The case of Fred Korematsu was once again mentioned in a federal courtroom this week as a three-judge panel of the 9th Circuit U.S. Court of Appeals heard arguments that the Trump Administration’s travel ban should be reinstated.
At issue was the administration’s plan to bar foreign nationals from six Muslim-majority countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — from entering the U.S. for 90 days and all refugees for 120 days. This was a revision of a Jan. 27 executive order, also blocked by a federal judge, that included Iraq on the list of targeted countries.
Acting Solicitor General Jeffrey Wall, representing the administration, told the judges that the executive order should be reinstated because it falls within the president’s authority.
“No one has ever attempted to set aside a law that is neutral on its face and neutral in its operation on the basis of largely campaign-trail comments made by a private citizen running for office,” Wall said, adding that Trump had walked back some of his statements as a candidate, including a proposal that all Muslims be banned from entering the U.S.
On March 15, U.S. District Court Judge Derrick Watson in Hawaii blocked the second travel ban hours before it was set to begin. The temporary restraining order applied nationwide. On April 7, the Department of Justice filed an opening brief seeking to overturn the preliminary injunction.
The case of Hawaii v. Trump was heard before 9th Circuit Court of Appeals Judges Ronald Gould, Michael Hawkins and Richard Paez.
“In today’s argument, we asked the court to uphold Judge Watson’s order issuing a nationwide injunction against the second travel ban,” said Hawaii Atttorney General Doug Chin. “We urged the court that Judge Watson’s well-reasoned decision should be affirmed. As expected, the panel judges asked informed and probing questions of both parties. We look forward to the court’s ruling.”
In his ruling issuing the nationwide injunction, Watson wrote that “a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the executive order was issued with a purpose to disfavor a particular religion.”
Representing Hawaii was Neal Katyal, who as acting U.S. solicitor general under President Obama acknowledged that his wartime predecessor made mistakes in defending the mass incarceration of Japanese Americans during arguments before the Supreme Court in the cases of Korematsu and Gordon Hirabayashi.
Katyal argued that Trump has had a “repeated pattern” of talking about a Muslim ban during and after the campaign.
“If you rule for him, you defer to the president in a way that history teaches us is very dangerous,” Katyal said.
Paez had pointed questions in response to Wall’s contention that the travel ban is “neutral,” without reference to Islam.
The judge noted that President Franklin Roosevelt’s Executive Order 9066, signed in 1942, resulted in the roundup of all Japanese Americans living on the West Coast even though the order spoke of national security without referring to a specific ethnic group.
Korematsu, a Nisei, evaded the roundup and was later arrested. He challenged the constitutionality of the incarceration and appealed his conviction to the Supreme Court, which upheld the government’s argument of military necessity. Though Korematsu’s case was reopened in the 1980s on the basis of new evidence and a federal judge vacated his conviction, the Supreme Court decision remains on the books.
“Would the Korematsu executive order pass muster under your test today?” Paez asked Wall.
“No, Judge Paez,” Wall answered.
“Why not? ‘Facially legitimate’ — that’s all you say,” Paez said. “You emphasize ‘facially legitimate.’”
“I want to be very clear about this,” wall said. “This case is not Korematsu, and if it were I would be standing here and the United States would not be defending it.”
Wall added that unlike the Korematsu case, Trump’s executive order probably wouldn’t be questioned if it were not for his statements as a candidate.
Outside the Seattle courthouse, advocates for refugees and immigrants held a rally, some carrying signs reading “No Ban, No Wall.”
There is no set timeline for when the panel may issue a ruling. The injunction against the travel ban remains in place until then.
“The executive order is fully lawful and will be upheld. We fully believe that,” White House Press Secretary Sean Spicer said at a daily briefing.