As Trump Defends Muslim Ban, Courts Become Crucial Buffer Against Executive Power

Protesters outside a hotel in Manhattan where Donald Trump was speaking during the presidential campaign, Dec. 11, 2015. The judges weighing in against Trump's revised travel ban both said that his campaign statements — particularly the call for a total and complete shutdown of Muslims entering the United States — helped doom the order. (Photo: Karsten Moran / The New York Times)Protesters outside a hotel in Manhattan where Donald Trump was speaking during the presidential campaign, December 11, 2015. The judges weighing in against Trump’s revised travel ban both said that his campaign statements — particularly the call for “a total and complete shutdown of Muslims entering the United States” — helped doom the order. (Photo: Karsten Moran / The New York Times)

The Trump administration defended president’s revised ban on travelers from six majority-Muslim countries this week in an arena where many of its policies are bound to take more permanent form or be thrown out — a federal courtroom. In a hearing on Monday, the Trump administration told an expanded panel of 13 judges on a Virginia federal appeals court that the purpose of the revised 90-day ban is to protect national security, not to heighten discrimination, regardless of Trump’s public statements indicating that Muslims would be targets of his policies.

A ruling is expected in the coming weeks, and will likely hinge on whether the court decides to consider Trump’s intent in ordering the ban. Omar Jadwat, an attorney for the plaintiffs with the American Civil Liberties Union (ACLU), told the court that Trump’s public statements about Muslims and refugees show intent to discriminate based on religion, which violates the Constitution and sends a harmful message to the entire Muslim community. Trump’s attorney said the ban targets certain countries because they harbor “terrorists” and are not capable of providing accurate information about travelers, so the court should assume Trump intends to protect national security within the bounds of the law.

During the hearing on Monday, the judges wondered whether they should remain “willfully blind” to Trump’s campaign statements calling for a ban on Muslim travelers and various xenophobic remarks about the apparent danger posed by Muslims and refugees. They also asked Jadwat if the ban would be legitimate if Trump had not won the presidency and a…

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