updated 7:33 AM MST, Nov 17, 2017

Trump's travel ban to face key test on Monday

  • Published in AMERICAS

Candidate Donald Trump's calls for a ban on Muslim immigration are at the heart of a challenge to his revised executive order restricting travel, to be considered Monday by a federal appeals court.

Is the 4th Circuit a liberal or conservative court? . The legal and political stakes in the case are high. That usually happens a few times a year.

And for the first time in the court's history the arguments will be broadcast live, on C-SPAN.

And in MA, U.S. District Judge Nathaniel Gorton - who was appointed by George H.W. Bush - refused to extend a restraining order against Mr. Trump's first executive order.

The clerk's office can not confirm if any judge or judges have recused themselves and said Thursday that the composition of the en banc panel will be revealed Monday.

The hearing will take place before 14 full-time judges of the appellate court. The exact list will be released Monday morning ahead of the hearing, set to begin at 2:30 pm (1830 GMT).

The 4th Circuit will decide the fate of a ruling from a Maryland district judge that struck down a section of the revised executive order barring visitors from Syria, Iran, Libya, Sudan, Yemen and Somalia.

The administration issued its first order on immigrant entry in late January. A panel of three federal judges will review the Hawaii judgment on appeal later this month at a court in Seattle, Washington.

Chuang's 43-page, March 16 ruling noted that the second executive order differs from the first, "in that the preference for religious minorities in the refugee process has been removed".

In a 43-page decision, Chuang detailed many of Trump's statements about Muslims from the campaign trail and concluded that despite the significant changes to who was exempted by the executive order the second time around, "the history of public statements continues to provide a convincing case that the objective of the Second Executive Order remains the realization of the long-envisioned Muslim ban".

The judge wrote that government officials defending the order "do not directly contest that this record of public statements reveals a religious motivation for the travel ban". But to the Trump administration, they are irrelevant, because all that counts is what the president said and did after he took the oath of office.

"In this highly unique case, the record provides strong indications that the national security objective is not the primary goal for the travel ban", he wrote.

FILE - Hawaii Attorney General Douglas Chin answers questions from the media, having presented his arguments after filing an amended lawsuit against President Donald Trump's new travel ban in Honolulu, Hawaii, March 15, 2017. Should the court evaluate the case within a national security framework, the government is more likely to prevail.

While much of the attention surrounding Mr. Trump's judicial nominations has centered on Judge Gorsuch and speculation over who he will pick to fill the 20 appeals court vacancies, legal analysts say his choices for the 101 open District Court seats could broadly affect everyday Americans who come to the courts seeking legal remedies. Judge J. Harvie Wilkinson III, a Ronald Reagan nominee, will not participate Monday because his son-in-law, Jeffrey B. Wall, will argue the government's case as acting solicitor general.

Thanks to the 331 federal judgeship appointments made by Mr. Obama during his eight-year term, it's unsurprising Democrat-appointed judges would have been assigned more frequently to travel ban cases, said Russell Wheeler, a fellow at the Brookings Institution's Governance Studies Program.

"On the one hand, they agreed on an initial en banc because they wanted to expedite it and realized it was so important nationally". "He's just a real leader on that court so I'm not sure how it cuts, it's not clear at all", he said. "He's got great analytical skills and he's not afraid to dissent when he has to".

Trump dropped the original travel order after unfavorable legal rulings and replaced it with a more limited ban, which is itself now being challenged in appeals courts on two coasts. The losing side can appeal to the U.S. Supreme Court.
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Conversely, a three-judge panel from the 9th U.S. Circuit Court of Appeals - consisting of two Democratic and one Republican appointee - ruled the first version of the order was likely illegal and upheld Judge Robart's earlier restraining order. Trump's administration is fighting that decision in the 9th U.S. Circuit Court of Appeals.