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  • Article: Fourth Circuit Oral Arguments in Travel Ban Case: Too Close to Call By Kevin R. Johnson

    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. refu*gee 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!


    This post originally appeared on Law Professor Blogs © 2014-2017 by Law Professor Blogs, LLC. All rights reserved.

    About The Author

    Kevin Johnson Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      An amicus brief filed in the 4th Circuit Muslim ban case by a group of constitutional law professors argues that, based on a long line of Supreme Court decisions, the courts have the power to look into the question of good faith behind presidential or executive actions, and that this doctrine also applies to Trump's Muslim ban. The brief also argues that the the fact that there also may be an ostensibly legitimate reason for a particular action is not enough to overcome evidence of bad faith.

      In the Muslim ban cases, the evidence of bad faith on Trump's part reaches up to high heaven, based on the hate filled content of Trump's December, 2015 Muslim ban campaign speech. As I have indicated in my own May 9 Immigration Daily blog, the anti-Muslim venom in Trump's 2015 statement, which is by no means the only such one he has made, bears comparison with some of the attacks that Adolf Hitler and Joseph Goebbels made against the Jews.

      If the courts ignore the bad faith that Trump's Muslim ban executive orders reek of and are drenched in, then Trump will be free to do almost anything he wants to anyone he wants to do it to. As was said about Nazi Germany: "First they came for the Jews and then the socialists...then they came for me".

      In America, it could well turn out to be: "First Trump banned the Muslims and then he deported the Mexicans..." Who else will he come for next?

      Roger Algase
      Attorney at Law
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