A three-judge panel of the Ninth U.S. Circuit Court of Appeals expressed skepticism about some arguments against the ban, but also pressed the lawyer defending Trump's suspended policy about whether it discriminates against Muslims.
A three-judge panel for the Ninth Circuit Court of Appeals questioned lawyers from both sides about the statements, as they considered whether to lift one of the two court orders now keeping the revised travel ban on hold.
The revised order temporarily suspend the nation's refugee program and temporarily bars new visas for citizens of six predominately Muslim countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.
That's the question before two federal appellate courts that have now heard arguments over Trump's revised travel ban and are being asked by Trump's opponents to use the president's own anti-Muslim campaign rhetoric against him.
Acting Solicitor General Jeffrey Wall, who represented the federal government at Monday's hearing, told the 9th Circuit that the Supreme Court has made it clear that all the executive branch needs to show is a "legitimate" and "bona fide" objective when deciding whom to exclude from the country.
The three judges on the panel - all appointees of former President Bill Clinton - peppered the parties with questions in an hour-long televised hearing Monday, appearing eager to flesh out exactly when the court might be allowed to look behind the plain text of the President's executive order find a discriminatory goal. In this image made from a C-SPAN video, participants and members in the gallery stand as three judges for the 9th US Circuit Court of Appeals enter the room in Seattle, Monday, May 15, 2017.
Lawyers for the Trump administration have argued the court must uphold a presidential order involving national security if it is neutrally worded and there is no clear sign of discriminatory intent.
Monday's arguments mark the second time Trump's efforts to restrict immigration from certain Muslim-majority nations have reached the San Francisco-based 9th Circuit. On Monday Wall said the order doesn't say anything about religion.
Donald Trump keeps getting his day in court; today, the 9th US Circuit Court of Appeals is taking up the Trump administration's so-called "travel ban."
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They also questioned whether they could consider Trump's campaign statements, with one judge asking if there was anything other than "willful blindness" that would prevent them from doing so.
Wall appeared taken aback by the comparison and said he would not have been standing in the courtroom if that was the kind of order before the court.
Katyal said Trump could formally disavow his earlier comments and say Islam was a peaceful religion, as did former President George W. Bush.
But Judge Richard Paez noted the order that led to the internment of Japanese-Americans during World War II was neutrally worded.
In Washington, White House spokesman Sean Spicer said at a news briefing that the executive order is "fully lawful and will be upheld".
No, said Katyal, adding that he wouldn't be arguing the case if it simply involved past campaign statements alone.
The panel, made up entirely of judges appointed by Democratic former President Bill Clinton, reviewed a Hawaii judge's ruling that blocked parts of the Republican president's revised travel order. Supreme Court precedent instructs them not to second-guess the executive branch's "facially legitimate and bona fide" immigration decisions. The judge called the evidence of animus "significant and unrebutted". Time and again, the Trump administration has resisted the characterization of the travel restrictions as a ban on Muslims - even though Trump, while campaigning for office, promised a "total and complete shutdown" on Muslims entering the United States. Mr Katyal warned that upholding the travel ban would mean "defer [ring] to the president in a way that history teaches us is very unsafe". The court heard arguments for two hours last week, but no word yet on when it might rule. The court has not yet ruled in that case. "If you rule for [the government], you defer to the president in a way history teaches us is risky", he said.
Who are the 3 judges hearing arguments on Trump travel ban?