SEATTLE >> An attorney for Hawaii told a federal appeals court Monday that President Donald Trump’s revised travel ban on citizens from six predominantly Muslim countries amounts to establishing Islam as a “disfavored religion.”

Neal Katyal, a Washington, D.C., attorney representing the state against the Trump administration, urged a three-judge panel of the 9th U.S. Circuit Court of Appeals not to “defer to the president in a way that history teaches us is very dangerous,” adding, “You open the door to so much.”

Katyal invoked Trump’s campaign call for a Muslim ban and statements the Republican has made since he was elected president that rekindled the idea of Islam as a national security threat, describing the revised executive order as “unconstitutional and un-American.”

Acting Solicitor General Jeffrey Wall, who represented the U.S. Department of Justice, argued that Trump has broad authority to restrict immigration in the nation’s interest. He said the revised executive order is “neutral on its face and neutral in operation” and described it as a brief pause so the government can improve vetting to detect Islamic terrorists.

Wall said the order does not pose a constitutional crisis, and warned against “psychoanalyzing” campaign rhetoric. He suggested that the appeals court “ought to leave this debate where it belongs, in the political arena.”

In March, U.S. District Judge Derrick Watson in Honolulu granted Hawaii’s request to halt the travel ban after the state contended it was an unconstitutional overreach that would harm tourism and the ability of universities to recruit foreign students. Ismail Elshikh, imam for the Muslim Association of Hawaii, whose mother-in-law lives in Syria, joined the state’s legal challenge.

The Trump administration appealed Watson’s ruling to the 9th Circuit, and the arguments Monday at the William Kenzo Nakamura U.S. Courthouse gave judges the opportunity to prod attorneys for both sides.

Judge Ronald Gould asked how the appeals court would know whether the revised executive order is actually “a Muslim ban in the guise of national security justification.”

Judge Michael Hawkins asked whether Trump has ever disavowed his campaign statements about Muslims or acknowledged that he was wrong and is now strictly addressing national security.

“Has he ever said anything approaching that?” the judge asked.

Wall said Trump has clarified over time that the travel ban is aimed at countries that shelter Islamic terrorists, rather than being a ban on Muslims.

Judge Richard Paez was concerned that many of Trump’s controversial statements about Muslims took place during a highly contentious presidential campaign and wondered whether Trump would now be “forever barred” from issuing such a travel ban.

Katyal acknowledged that a narrower order could be constitutional, but he insisted that “context matters.” If the appeals court were to agree with the Trump administration, he said, “you are giving the president the ability to take a magic eraser” to immigration law.

Internment question

In a chilling moment, Paez questioned whether President Franklin Roosevelt’s executive order on the internment of Japanese-Americans during World War II — upheld by the U.S. Supreme Court in Korematsu v. United States in 1944 — would pass muster today under the Trump administration’s interpretation of the president’s power.

“I want to be very clear about this,” Wall said. “This case is not a Korematsu, and if it were, I wouldn’t be standing here, and the United States would not be defending it.”

Judge Hawkins said that some of Trump’s statements about the travel ban can be read in more than one way, and pressed Katyal to explain why the appeals court should not give the president the benefit of the doubt. “Why shouldn’t we be deferential to the office of president of the United States on such issues?” the judge asked.

Katyal called it the “million-dollar question,” adding, “The whole test is an objective observer, not what the president thinks. We’re not impugning what’s in his head. We’re just saying, objectively, this is how a reasonable viewer would see it.

“If you viewed it the other way and gave deference, then you’d really be giving the president the ability to bootstrap all sorts of things and say, well, enact all sorts of discriminatory policies, but then say, you have to defer to me: I don’t think it’s discriminatory.”

Legal challenges to Trump’s travel ban are moving on several tracks.

Last week the 4th U.S. Circuit Court of Appeals in Virginia heard arguments on a ruling by a U.S. district judge in Maryland in March that stopped portions of the travel ban. The International Refugee Assistance Project, HIAS and the Middle East Studies Association of North America claim the ban is an unconstitutional violation of the First Amendment’s establishment clause on religion and the equal protection and due process rights in the Fifth Amendment. At issue, as in the Hawaii case, is whether statements by the president and his advisers about Muslims can be used as evidence of intent.

A U.S. district judge in Washington, D.C., indicated last week that she would likely halt the travel ban if the preliminary injunctions by the 9th Circuit and the 4th Circuit are lifted.

A U.S. district judge in Michigan has ordered the Trump administration to turn over a memo from former New York Mayor Rudolph Giuliani outlining the rationale for the ban. Giuliani said in a Fox News interview in January that Trump had asked him to “show me the right way to do it legally.”

Ban revised

Trump issued an executive order shortly after taking office in January that prevented citizens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from traveling to the United States for 90 days. The order, which the president said was necessary to protect the country from terrorism, also indefinitely blocked refugees from Syria.

But a U.S. district judge in Seattle halted the executive order in February, siding with Washington state, which argued the travel ban targeted Muslims and unconstitutionally discriminated on the basis of national origin and religion. The judge’s ruling was upheld by a three-judge panel of the 9th Circuit.

In March, Trump issued a revised executive order, dropping Iraq, an ally in the war on terrorism, from the list of countries, and exempting permanent residents and visa holders. The second order also blocked refugees from Syria and other countries for 120 days, rather than indefinitely.

Judge Watson agreed with Hawaii that the revised order was also discriminatory against Muslims, citing Trump’s rhetoric about a Muslim ban during his campaign, and declaring that the court “will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.”

Trump has blasted the judges who have ruled against him and has threatened to try to break up the 9th Circuit, which covers nine Western states and the territories of Guam and the Northern Mariana Islands and has a reputation as liberal.

Attorney General Jeff Sessions, in an interview on a conservative talk radio show in April, marveled, “I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power.”

Sessions’ comment was criticized by U.S. Sens. Brian Schatz and Mazie Hirono, Hawaii Democrats, as dismissive of the 50th state.

The three judges who were assigned to hear Trump’s appeal Monday in Seattle — Hawkins of Phoenix, Gould of Seattle and Paez of Pasadena, Calif. — were all appointed by President Bill Clinton.

Hawaii Attorney General Douglas Chin said after the hearing, which he attended, that the legal challenge is not about a Democratic state protesting a Republican president. He described Hawaii as the most ethnically diverse state, where 1 out of 5 residents is foreign born.

“I think we have a really unique story to tell,” Chin said, “and I think it is because of the diverse culture that we have. I think it’s because of the fact that we lived through such a big part of World War II. Not just because of the attack on Pearl Harbor, but also due to the internment of Japanese-American citizens.”

Telling venue

Not lost on Chin and others was the setting for Monday’s arguments: a federal courthouse named for Nakamura, who was killed fighting in Italy for the U.S. Army’s 442nd Regimental Combat Team during World War II. Clinton awarded Nakamura the Medal of Honor posthumously in 2000 in a ceremony that also recognized the wartime heroism of the late U.S. Sen. Daniel K. Inouye.

“I think there’s a heartfelt response that we have when you hear the president or the people at the highest levels of government denigrating any nation or any religion,” said Chin, a son of Chinese immigrants.

Hawaii does not blame Trump for trying to preserve national security, but the state contends the travel ban exceeds the president’s authority. Chin said the legal challenges are examples of how the nation’s system of checks and balances is working.

“We don’t fault President Trump for trying to achieve that goal,” Chin said. “What we’re faulting is that he’s trying to do it in a way that violates the Constitution or violates our immigration laws.”