"Why shouldn't we be deferential to what the president says?" Ninth Circuit Judge Michael Daly Hawkins asked the groups challenging President Trump's executive order banning entry from six majority-Muslim countries.
"That is the million dollar question," responded the lawyer representing the state of Hawaii. He went on to say that since a reasonable person could understand Trump's rhetoric around the order as evidence of his intent to discriminate against Muslims, there should be an exception to the broad powers the President has to exclude people from the nation.
A major question in the case is not whether presidents have broad authority over immigration, but whether there should be a so-called "bad faith" exception to that authority when it's used in a way that seems to contradict the Due Process and Equal Protection clauses in our Constitution.
The revised travel ban blocks all entrants from six countries -- Syria, Iran, Somalia, Sudan, Libya and Yemen -- for 90 days and prohibits refugees for 120 days. It does not mention religion like the earlier version already struck down by the Ninth Circuit.
Does Trump have the power to discriminate against immigrants who meet all other qualifications?
The acting solicitor general defending the order urged the panel of judges to set aside the fiery, anti-Muslim rhetoric Trump engaged in during the election, when he was only a candidate and not yet President of the United States. Many of those statements came "during the midst of a highly contentious campaign." He added that the President has since clarified his statements to be anti-Islamic terrorist, not anti-Muslim.
The parties challenging the ban sharply disagreed, noting that the President was still calling for a "total and complete shutdown of Muslims entering the United States" as late as last week. Moreover, they argued, it would be "dangerous" for the courts to defer to the President's own interpretation when reasonable people would call his statements unquestionably anti-Muslim -- and threatening.
"The government has not engaged in mass, dragnet exclusions in the past 50 years," said Hawaii's attorney. "This is something new and unusual in which you're saying, 'this whole class of people, some of whom are dangerous, we can ban them all.'"
The solicitor general asserts that Trump's order is needed to protect national security.