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Virginia appeals court skeptical of Trump's revised 'travel ban'

"We took an oath and formed a government," a Trump attorney argued Monday, when asked how the president's "travel ban" differs from the "Muslim ban" he promised during his campaign.

By Doug G. Ware
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Virginia appeals court skeptical of Trump's revised 'travel ban'
A protester holds a sign in New York City during a demonstration against President Donald Trump's administration. Monday, a federal appeals court in Virginia heard arguments from government lawyers about why the national injunction against his so-called "travel ban" should be lifted. Photo by John Angelillo/UPI | License Photo

May 8 (UPI) -- President Donald Trump's administration went to federal court once again Monday to appeal a nationwide restraining order that's keeping his so-called "travel ban" from taking effect.

Acting Solicitor General Jeffrey Wall was questioned by a panel of judges Monday in the 4th Circuit Court of Appeals in Virginia about why the injunction should be lifted and Trump should be allowed to suspend U.S. travel visas for immigrants in six largely Muslim countries.

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The administration is attempting to defend Trump's second order after the first was soundly defeated in federal court.

Among the answers the panel sought Monday was how the second order differs from the first, which was ruled unconstitutional by courts in Seattle and San Francisco earlier this year. Courts in Maryland and Hawaii halted the second order, which had been designed to withstand legal scrutiny.

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One of the Virginia judges, Robert B. King, pointed out that the so-called "Muslim ban" Trump repeatedly spoke of during his run for president was still on his campaign website as of Monday. A short time later, it was removed.

Many observers and legal jurists have argued since January that Trump's ban on refugees is merely an attempt to make good on that campaign promise -- a position the Maryland court took in its March 16 ruling.

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Wall attempted to describe the difference by saying Trump spoke of a "Muslim ban" when he was campaigning for president, but geared the order in question as a separate national security effort once he took office.

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"It is an archived press statement from 16 months ago," he said. "We took an oath and formed a government."

"[Trump] made it clear he was not talking about Muslims all over the world, that's why it's not a Muslim ban," Wall added, saying that the order is intended to let immigration officials better screen foreign nationals seeking U.S. travel visas. When asked if Trump's government has been stepping up that vetting process, Wall said no.

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"What we have been doing since January 27 is just litigating this order," he answered.

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Wall also said the president's order isn't aimed at any one group, a claim Judge Albert Diaz questioned.

"In what sense is it neutral?" The countries selected for the ban are almost all Muslim," he said.

Trump's revised order bars U.S. entry for immigrants of Iran, Syria, Libya, Yemen, Somalia and Sudan. The first version of the ban added Iraqi migrants to that list.

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In March, Maryland U.S. District Court Judge Theodore Chuang declared the 90-day visa ban unconstitutional and ordered it blocked nationwide. Monday's hearing initiated the government's appeal of that decision. Trump's effort also seeks a ban for all refugees worldwide for 120 days, but that provision was blocked by the Hawaiian court. Government attorneys will argue for that part of the order at a hearing in the U.S. Court of Appeals for the 9th Circuit in Seattle on May 15.

Most legal observers don't give Trump's appeal much chance of winning in Virginia. Ten of the court's 13 judges who heard Monday's arguments were appointed by Presidents Barack Obama and Bill Clinton. Judge J. Harvie Wilkinson III, perhaps the most conservative judge on the bench, recused himself from the matter because Wall is his son in-law.

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It's unclear when the 4th Circuit Court will rule on the matter. However, judges accelerated the process Monday by having the case heard by the full court -- instead of just three judges it typically uses to hear initial case arguments.

In order for Trump's order to take effect, his administration needs to win the Virginia and Seattle appeals -- or hope the Supreme Court intervenes on its behalf.

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