ROBERT SIEGEL, HOST:
In his first week as president, Donald Trump issued an executive order that barred entry to the U.S. for people traveling from several predominantly Muslim countries, along with several other categories of immigrants and foreign visitors. That ban was struck down in the federal courts, prompting the president to issue a second, more narrowly focused order which has also been blocked - at least temporarily - by the courts, which rule that the president's own words are the most important issue in the case. Today this issue was before the 4th U.S. Circuit Court of Appeals in Richmond, Va. Here's acting Solicitor General Jeffrey Wall arguing for the government.
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JEFFREY WALL: Candidates talk about things on the campaign trail all the time. And no, we haven't had a lot of litigation over them because the right legal standards here don't allow for inquiries into subjective motivations.
JAMES WYNN: Well, we're already in uncharted territory, I think, here.
SIEGEL: NPR's Carrie Johnson was in the courtroom, and she's on the line now to talk about the cases for and against. And Carrie - first reactions.
CARRIE JOHNSON, BYLINE: Well, it was a hot bench, Robert. Both of the attorneys arguing this case for the ACLU and the Justice Department got one line into their argument - may it please the court - then the judges jumped in. In fact, the arguments went one hour, five minutes beyond the allotted time. And there were about 100 protesters outside mostly protesting the travel ban, plus one lone ranger with a Trump sign. And 13 judges heard this case, the majority appointed by Democratic presidents. But that does not mean the ACLU had an easy time fighting this travel ban today.
SIEGEL: Yeah, the American Civil Liberties Union is in court. And the government is saying that the Justice Department - or the Justice Department is arguing that the president has enormous power when it comes to national security at the border.
JOHNSON: Yeah, the Justice Department says the president just wants a temporary pause and the law allows him the power to suspend any class of people he decides at the border are detrimental to the U.S. The acting solicitor general, Jeffrey Wall, said Trump is simply worried about relations with governments in those six majority-Muslim countries that are at issue in this executive order. And the government also argued only one plaintiff, a man whose wife is overseas, actually has standing. So he's saying the nationwide injunction against this travel ban is just too broad.
SIEGEL: That's what the government is saying. What is the ACLU saying?
JOHNSON: Well, president - the ACLU's saying that President Trump's statements on the campaign trail and since he took office suggest that he has an animus against Muslims, that this is more than - something more about national security. In fact, the president on the campaign trail called for a total and complete ban of Muslims. That - some of that information remains on his campaign website. And President Trump said at the signing of his revised executive order imposing these travel restrictions, we all know what this means. The ACLU's Omar Jadwat said, we need to be able to look for an improper motive here, one that would violate the Establishment Clause of the Constitution that says you can't favor one religion over another.
SIEGEL: So that's what the ACLU said. You told us what the government argued. How did the judges react to all this?
JOHNSON: Robert, they were incredibly active throughout the course of this two hours plus of arguments. Many of them cited remarks off the top their heads from President Trump, his press secretary, Sean Spicer, and Trump adviser Rudy Giuliani. They seemed somewhat troubled by those remarks. But they were equally troubled or wrestling with how long - if there is some kind of religious motivation, anti-religious motivation here behind this travel ban, how long does the taint of that last? Could that last throughout Donald Trump's entire presidency? What about the attorney general and the Homeland Security secretary who have also vouched for the president in this regard?
They said more to the effect of we're in a separate branch of government. We don't want to be psychoanalyzing the president of the United States or imposing our national security judgments on him. They also asked a lot of questions, Robert, about what ever happened to the study being done by the Homeland Security Department and the State Department of extreme vetting across all countries, not just the six majority-Muslim countries at issue in this travel ban?
SIEGEL: So that's a sense of what you could glean from what the judges made of all this based on what they said in court today. There's no ruling yet. So what happens now?
JOHNSON: Well, the - one of the judges, Judge Robert King, said the most important issue in the case is President Trump's statements. And they're going to be wrestling over time with how much they can defer to the president's national security power versus how much his statements may impact the Establishment Clause. The judges could decide to narrow the injunction, send it back to a lower court. And Robert, we are not done. Next week, a week from today, a federal appeals court from the 9th Circuit is going to hear similar arguments in the case filed by the state of Hawaii against this travel ban - so lots of litigation yet to come. Stay tuned.
SIEGEL: NPR's Carrie Johnson. Thanks.
JOHNSON: You're welcome.
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