U.S. appeals court judges asked tough questions about President Donald Trump's temporary ban on travelers from six predominantly Muslim countries, with several voicing skepticism that national security was the measure's true goal.
Six of the 13 judges hearing the case on May 8, all appointed by Democratic presidents, showed concern about reviving Trump's March executive order that temporarily barred giving new visas to all refugees and to citizens of Iran, Libya, Somalia, Sudan, Syria, and Yemen.
But three Republican appointees on the U.S. Circuit Court of Appeals in Richmond, Virginia, asked whether the president should be second-guessed when it comes to protecting the country's borders.
Taken together, the judges' lines of questioning suggested their ruling may hinge on whether they should take into account past statements by Trump -- who vowed a "total and complete shutdown of Muslims entering the United States" during his campaign -- in deciding whether the travel order is constitutional. The administration insists those comments should be ignored.
"This is not a Muslim ban," Acting Solicitor General Jeffrey Wall, told the court during a two-hour hearing.
Wall said the judges should look only at the language in the executive order, which is "neutral" and does not mention any specific religion, to determine what motivated it.
But some of the judges were skeptical about ignoring Trump's campaign rhetoric, which was cited by lower courts as their reason for barring the order from taking effect in March.
"Don't we get to consider what was actually said here and said very explicitly?" asked Judge James A. Wynn Jr., who was appointed by Democratic former President Barack Obama.
Judge Robert King, named by Democratic former President Bill Clinton, pointed out that Trump has never retracted his pledge to impose a ban on Muslims.
"He's never repudiated what he said about the Muslim ban," King said.
Judge Pamela Harris, also appointed by Obama, said Trump's action clearly had a disparate impact on Muslims, asking, "How is this neutral in its operation as to Muslims?"
Judge Barbara Keenan, an Obama appointee, said the order was sweeping and could affect some 200 million people, even if it doesn't encompass the entire Muslim world.
Justice Department lawyers argued that the temporary ban only was intended to give the government time to evaluate whether people from the six targeted countries were getting adequately vetted to ensure they do not pose a security threat to the United States.
Despite the "heated and passionate political debate" about the order, Wall said the court must be careful not to open the door to broader questioning of presidential decision making on national security matters by the courts.
Judge Paul Niemeyer, appointed by Republican former President George H.W. Bush, seemed responsive to that argument, saying the court was being asked to rule on a president's national security judgments.
"You have the judiciary supervising and assessing how the executive is carrying out his office," Niemeyer said. "I just don't know where this stops."
The revised travel ban was challenged in Maryland by refugee organizations and individuals who said they were being discriminated against because they were Muslim.
They argued the order violates the U.S. Constitution's First Amendment, which bars the government from favoring one religion over another.
A U.S. District Court in Maryland agreed with them and put the order on hold on March 15, just a day before it was due to go into effect, triggering an appeal by the Justice Department.
The executive order was also blocked by a U.S. court in Hawaii in a separate challenge.
The appeal in the Hawaii case will be heard by a U.S. appeals court panel in Seattle on May 15. All three judges on the panel are Democratic appointees.
Regardless of how the appeals courts rule, the matter is likely to be decided ultimately by the U.S. Supreme Court, which has the final say on constitutional matters in the United States.