President Donald Trump's amended travel ban will face a key test on Monday, when a U.S. appeals court is set to take on a case that has stymied the administration's controversial efforts to bar travelers from six Muslim-majority countries.
Trump has already made one federal appeals court nomination, selecting federal district judge Amul Thapar for a seat on the 6th Circuit. The full 15-member court will consider the appeal, bypassing the normal first step of a hearing before a three-judge panel.
The federal court in Richmond, Virginia, will scrutinise an earlier ruling by a Maryland federal judge which froze Trump's second attempt to close U.S. borders to citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days. The Maryland federal judge had issued a nationwide block on the ban's core provision concerning travel from the Muslim world, saying the order raised the prospect of religious bias.
The nation's highest court is more likely to hear a case if the federal appeals courts reach opposite rulings or if the issue is of great national importance, according to legal experts. Courts must judge the constitutionality of the executive order by what it says, "not by what supposedly lies at the heart of its drafters".
Ten of them were appointed by Democrats, and four by Republicans. Judge J. Harvie Wilkinson, a Ronald Reagan nominee, will not participate Monday because his son-in-law, Jeffrey Wall, will argue the government's case as acting solicitor general. She also served in the U.S. Justice Department when George W. Bush was president.
He urged them to focus on the religiously neutral text of Trump's revised travel ban rather than the Republican's anti-Muslim campaign statements. The fate of the ban is one indication of whether the Republican can carry out his promises to be tough on immigration and national security.
The challengers "invoke their rights to be free from government condemnation of their religion within the United States", the ACLU says.
Justice Department lawyers say the court should evaluate the words of the executive order and the administration's explanation for its goal, avoiding "judicial psychoanalysis" of what Trump may have meant during the campaign.
But Judge Robert King, a Democratic appointee, noted that Trump has never retracted previous statements calling for a Muslim ban.
The American Civil Liberties Union and National Immigration Law Center say Trump wants the courts to "blind themselves to the ample, public, and uncontested evidence" that the policy targets Muslims. But even if the court does that, the executive order will remain blocked by the decision in Hawaii.
Reuters reported that a key issue in the court's deliberations could be whether it agrees with the lower court's decision to take past statements by Trump about the need for a Muslim ban into account.
The revised travel order followed widespread confusion and protest in January after a first version caused deportations and detentions of people already aboard flights to the United States as the order was signed.
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