Monday, May 8, 2017
The Fourth Circuit en banc heard almost two hours of intense oral arguments in Trump v. International Refugee Assistance Project (IRAP) from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."
The court of 13 Judges (there were recusals from Harvey Wilkinson III whose son-in-law is Jeffrey Wall, Acting Solicitor General arguing for the United States, and Allison Duncan), were very active and asked the questions which are by now familiar, including standing, the constitutional "choice" between Executive power in immigration and Establishment Clause doctrine, and the statutory under Immigration and Nationality Act. (We discuss these issues and Judge Chuang's ruling here). The opening question, however - - - before Wall even had a chance to introduce himself - - - concerned the scope of Judge Chuang's injunction.
In its most basic terms, Wall defended the President's Executive Order by repeating that once the President takes the oath of office, his actions are entitled to a "presumption of regularity," thus the judiciary should not inquire further regarding any motive. Representing the plaintiffs, ACLU attorney Omar C. Jadwat was pressed on how the court should look beyond the four corners of the EO and how long any taint from animus should last.
The oral argument is available on C-SPAN, with an official transcript from the court forthcoming.
Next Monday, a panel of the Ninth Circuit will hear the appeal in Hawai'i v. Trump.