- The Washington Times - Thursday, February 9, 2017

A federal appeals court said Thursday that it’s still an open question whether President Trump’s extreme vetting executive order amounts to an illegal “Muslim ban” of the sort he promised during the presidential campaign.

The 9th U.S. Circuit Court of Appeals ruled against the president on nearly every other issue, saying he botched the writing and the legal defense of his Jan. 27 executive order.

But the judges declined to rule on whether it was an unconstitutional targeting of Muslims, saying that there is evidence outside of the executive order that could be considered, and saying that will be part of a fuller hearing as the case proceeds.

The states of Washington and Minnesota, which sued to stop Mr. Trump’s policy, had argued in court that Mr. Trump’s own campaign promise of a ban on Muslims entering the country soured his new policy, making it unconstitutional.

The Justice Department objected, saying campaign quotes didn’t matter when the executive order itself was clear, and didn’t target any specific religion.

The three-judge appeals panel, though, said Mr. Trump’s statements can be considered.

“It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims,” the judges said.

They said questions of the Muslim ban will be dealt with as the case proceeds through more full arguments.

“The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed,” the judges said.

Mr. Trump spent months during the campaign parsing what, exactly, he meant when he announced in December 2015 that he wanted “a total and complete shutdown of Muslims entering the United States” until the government could get a handle on things.

Eventually Mr. Trump said what he meant was that Muslims should undergo “extreme vetting” before being admitted.

In the new executive order, Mr. Trump imposed a 90-day halt on most visitors from seven majority-Muslim countries deemed to be nexuses for terrorism. He also imposed a 120-day pause on the U.S. refugee program.

Democrats have said that policy amounts to a “Muslim ban,” while fact-checkers have said it doesn’t. Even the lawyer arguing in court Tuesday against Mr. Trump’s policy admitted that it is not a “complete ban on Muslims entering the country.”

But whether the policy is discriminatory toward Muslims is still relevant, the court said.

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