IndefensibleAn appeals court is unlikely to lift the stay on the travel ban

IF DONALD TRUMP loses his appeal of a Maryland judge’s order blocking his revised ban on travel from six Muslim-majority countries, he won’t have his lawyer to blame. Jeffrey Wall, Mr Trump’s acting solicitor-general, was unflappable in running down every question 13 Fourth Circuit judges threw his way in its hearing on May 8th. Meanwhile, Omar Jadwat, the lawyer for the challengers, was off-balance and unpersuasive for much of his hour-long presentation. But the case against Mr Trump’s executive order is strong enough to withstand this advocate mismatch. Only two judges—one appointed by George W. Bush, the other by George H.W. Bush—gave clear indications that they are on the government’s side.

The Fourth Circuit was long one of the nation’s most conservative, but Barack Obama’s six appointments to the court in Richmond, Virginia have changed that. On Monday, Mr Obama’s appointees were active questioners of Mr Wall. Judges Albert Diaz, Henry Floyd, Pamela Harris, Barbara Keenan, Stephanie Thacker and James Wynn all sounded sceptical of Mr Trump’s ban. Judge Keenan noted that barring travel from Iran, Libya, Somalia, Sudan, Syria and Yemen affects 82m people. Is there “something about those people’s nationality that renders them suspect or renders them dangerous?” Judge Thacker wondered why the administration had done no work improving vetting procedures for travellers from these six countries over the past several months. (“Busy writing briefs?” Judge Dennis Shedd interjected, to laughter.) In a particularly telling comment, Judge Floyd asked how “anything but wilful blindness” could allow the court to see Mr Trump’s order as unmotivated by anti-Muslim bias. 

Two Bill Clinton appointees, Judges Diana Motz and Robert King, asked pointed questions of Mr Wall too. Judge Motz noted that taking the oath of office “does not give [Mr Trump] the right to violate the Establishment Clause” of the First Amendment. Judge King asked whether Mr Trump had “ever repudiated statements he made on the Muslim ban”, noting that his call in late 2015 to ban Muslims from entering the country “is still on his website”. Mr Wall pooh-poohed this as just an “archived press statement”—but neither the judge nor the advocate seemed to be aware that the page was zapped from the White House website sometime that afternoon, perhaps as they were speaking. This deletion—like tossing a smoking gun into the river, with everybody watching—is unlikely to boost the president’s chances in court.

The case boils down to whether the executive order “protecting the nation from foreign terrorist entry into the United States” should be evaluated on its face value, as Mr Wall urged (pointing to a 1972 Supreme Court precedent), or whether the court should look for signs of Mr Trump’s motivation when he signed it. Mr Jadwat painted himself into an uncomfortable corner when, in response to a question from Judge Fred Niemeyer, he admitted that the exact same order might be constitutional had a different president issued it without saying incendiary things about Muslims first. But Mr Jadwat then waffled, saying that the text of the order was itself damning, even without evidence of presidential animus toward a specific religious group. Mr Wall claimed that even if motive is considered, evidence of purported animus is thin. It amounts to just “an offhand six-word statement”, he said: Mr Trump remarking “we all know what that means” after signing the executive order. In his cleverest moment of an otherwise half-hearted performance, Mr Jadwat drove home the importance of that line: If Mr Trump was referring to terrorists (rather than Muslims) when he read the title of the order concerning “foreign terrorists” and then said “we all know what that means”, “there would have been no reason to say ‘we all know what that means’”.

Judges Niemeyer and George Agee peppered Mr Jadwat with questions he did not always handle well. The more measured Judge Agee pressed Mr Jadwat on whether his plaintiffs really had standing to sue. Judge Niemeyer showed thinly disguised disdain for the plaintiffs’ argument when asking whether the court should look not only at campaign statements but at speeches Mr Trump gave to businessmen 20 years ago, or in college, to identify a “taint” of anti-Muslim bias in the executive order. And he rattled Mr Jadwat when asking whether the judiciary, the “third branch” of government, should have “some respect” for the legislative and executive branches.

Ordinarily, courts defer to presidents on matters of immigration and foreign policy. But, ordinarily, presidents do not, while campaigning for office, call for “a total and complete shutdown” on 1.6bn members of the world’s second-largest religion from entering the country. That proposal—and the sentiment underlying it—continue to hamper Mr Trump’s efforts to clamp down on entry to America’s shores. The Ninth Circuit in California is set to hear a similar appeal on May 15th. Once the Fourth and Ninth Circuit courts issue their rulings in the coming weeks, Mr Trump’s addled executive order may meet its final reckoning at the Supreme Court.