The 9th U.S. Circuit Court of Appeals heard arguments on the reinstatement of Donald Trump's Muslim ban, a proceeding that was best summed up by plaintiff's attorney Neal Katyal, who told the three-judge panel that "You don't need to be Sigmund Freud" in order to divine Trump's discriminatory intent.
A three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments on whether to lift the injunction on the second iteration of Donald Trump's Muslim ban, and it did not go well for Team Trump.
Attorney Neal Katyal, the plaintiff's attorney representing Hawaii, perfectly summed up the judges' concerns when he went through the litany of pre-and-post inauguration statements by Trump that make plain the discriminatory intent of the Muslim ban, and pointed out that it is not at all subtle:
— Tommy Christopher (@tommyxtopher) May 15, 2017
We wouldn't be standing here if it was just campaign statements on its own. But as the district court found, the president rekindled those statements, through his actions as president in two different respects. First, when he issued the first executive order, he read the title of the executive order, looked up at the camera and said, 'We all know what that means.' That's at SCR 148. And that is — you know, if it was clear from the title what it meant, he wouldn't have had to say it. It's a reference to something else.
And, indeed, when he issued both executive orders, he left on his website that very statement about the complete and total shutdown of Muslims — a statement that just happened to disappear moments before the Fourth Circuit argument last week. So, I think the question is: What would an objective observer view these statements as? And as the district court found, it would view them as an establishment of a disfavored religion of Islam.
We're not saying that — we're not in favor of psychoanalysis or trying to get into the president's head. You don't, your honor, need to be Sigmund Freud in order to affirm the district court. You just simply must ask, as the Supreme Court has told you: What would an objective observer think with these sorts of statements?
And these statements, by the way, just one last point, do continue — even last month, the DOE brief which is filed before you, says, even last month the president said it's a lot easier for Muslims to immigrate than Christian refugees to -- from the Middle East. And, quote, 'He's going to be helping the Christians big league.'
So, this is a repeated pattern of the president. Indeed, two months ago, to this day, when the district court struck down the injunction in this case, this is at SCR 84, the president said, quote, 'Moments ago, I learned that a district judge in Hawaii, part of the much overturned ninth circuit — circuit, sorry about that — just blocked our executive order. This is a water-downed version of the first one. And, let me tell you something. I think we ought to go back to the first one and go all the way which is what I wanted to do — '
Indeed, Trump's explicit call for a Muslim ban remained on his campaign website until minutes after White House press secretary Sean Spicer was pressed about it at a briefing last week. Even Trump's acting solicitor general could do no better than to assert that there were a "handful" of incriminating statements made by Trump since his inauguration.
The judges' questions and skepticism during arguments suggest they might not overturn the injunction. That means the case might be headed for the Supreme Court.
If and when that happens, it will be an early and crucial test of Justice Neil Gorsuch's independence, which was called into question by Democrats, and his judgment, which was called into question by Gorsuch himself at his confirmation hearing. Gorsuch was a big fan of "plain language" when it benefited corporations and the wealthy, but twisted himself into logical pretzels when doing so would disadvantage the vulnerable.
But if the passage of time has proven anything, it is that the "urgent national security" concern that Trump and his administration promoted in order to scare people into going along with his ban were nothing but the obvious pretext they always seemed to be.
As this week's events have shown, Trump himself is a far greater threat to national security than the injunction against his Muslim ban.