The Muslim Ban Is a Muslim Ban, the ACLU Argued in Court

As the gavel sounded on Monday afternoon, the Richmond, Virginia, courtroom quieted. In a room of rich green carpet, great hanging chandeliers, and dark wood, the Fourth Circuit prepared to listen to a lawyer from the government argue with the ACLU's Omar Jadwat about the Muslim ban.

Outside, a couple hundred protesters marched around the courthouse shouting, "No hate, no fear, Muslims are welcome here!"

"My great-grandparents were immigrants," said Louis Gary, 59, an IT manager from Henrico County, Virginia, saying he thought it was "foolish" to categorize all citizens of six Muslim-majority countries as a threat.

Inside, some 13 judges -- the entire Fourth Circuit, minus two judges who recused themselves -- fired questions at attorneys about the Muslim ban. Normally, a three-judge panel would hear the case, but the court of appeals decided to bypass normal procedures and have the whole circuit weigh in on whether or not President Trump's executive order violates First Amendment prohibitions against the government's denigration of a religion.

Maryland U.S. District Court Judge Theodore D. Chuang had written in his March ruling that the "history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban."

On Monday, the Fourth Circuit judges barraged government attorney Jeffrey B. Wall, the acting U.S. solicitor general, with questions about whether they should consider campaign promises Trump made to ban Muslims from entering the U.S.

"What he said was that Islam hates us. He said we have a problem with Muslims in the United States."

Wall attempted to paint the Muslim ban as reasonable, a mere "pause" to study the existing procedures to vet travelers from six countries, and insisted it had nothing to do with the countries being predominantly Muslim.

"This is not a Muslim ban," Wall said. "It has nothing to do with religion. Its operation has nothing to do with religion."

He insisted that Trump's call for "a total and complete shutdown of Muslims entering the United States" was mere campaign rhetoric. "Candidates talk about things on the campaign trail all the time," Wall said.

Some of the judges on the panel seemed persuaded by the argument. Judge Paul V. Niemeyer asked how far back one should go in looking at a president's prior statements. "Can we look at his college speeches?" he said. "How about his speeches to businessmen about 20 years ago, should we look at that?"

But other judges pushed back, suggesting that what candidate Trump said he intended to do during the campaign was relevant to what he actually did.

"He's never repudiated what he said about the Muslim ban," said Judge Robert B. King.

Judge Henry F. Floyd put it even more starkly: "Is there anything other than willful blindness that would prevent us from looking at those?" he said.

In making his case that the president's order was motivated by animus towards Islam, Jadwat, the director of the ACLU's Immigrants' Rights Project, said, "What he said was that Islam hates us. He said we have a problem with Muslims in the United States."

Jadwat also pointed out that the president's promise to ban Muslims remained online on his campaign website. Almost simultaneously, the statements were taken down yesterday, after a reporter asked White House Press Secretary Sean Spicer about them.

The government argued that the courts shouldn't second-guess the president's national security decisions. Some of the judges seemed to agree.

"Is the executive not entitled to some deference?" asked Judge Dennis W. Shedd.

"Deference can't be a reason to violate the Establishment Clause," said Jadwat, referring to the clause of the First Amendment that prohibits discrimination on the basis of religion.

"If you're right about the order in this case, I don't know where it stops," said one judge.

"I think the question is not so much where it ends, but if it starts at all," said Jadwat.

Jadwat focused on the real impact the decision would have on plaintiffs. One is a Syrian-born college student in North Carolina waiting to be reunited with her sister and her sister's husband and children, who had escaped their country after their house was destroyed by Syrian government bombardment. They eventually ended up in Yemen, one of the few countries to accept Syrian refugees without visas, and got United Nations' status as refugees. But war broke out in Yemen too, leaving them under bombardment and lacking adequate food, clean water, or electricity.

The ACLU and National Immigration Law Center also brought the case to the Fourth Circuit on behalf of organizations including the International Refugee Assistance Project, which aids refugees; HIAS, a refugee resettlement organization founded as the Hebrew Immigrant Aid Society; and the Middle East Studies Association, an academic association whose members' travel was restricted by the ban.

There is no word on when the Fourth Circuit will rule, but the Ninth Circuit Appeals Court will hear another challenge to Trump's Muslim ban on May 15 in Seattle.