'The courts have spoken, time and time again: the reviseexecutive order is just as discriminatory and harmful as the first, Heller said.
His first executive order restricting visitors from a handful of majority-Muslim countries provoked chaos at airports across the country in January. Others, though, said the law did not permit judges to second-guess a president's national security assessments, indicating that they were prepared to uphold the order. "Are his statements irrelevant?"
"Has the president ever repudiated the campaign statements he made about a Muslim ban?" asked Judge Robert King. Amid tough questioning by the judges, Jadwat pointed out that a statement outlining Trumps intention to enact a total and complete shutdown of Muslims entering the U.S. was still on his campaign website.
Wall told the judges past legal precedent holds that the court should not look behind the text of the Trump's executive order, which does not mention any specific religion, to get at its motivations. He also argued that the order relates to national security and the president has broad authority to protect the country.
Judge Henry Floyd, an appointee of President Obama, asked if there is anything other than "willful blindness" that would give the court reason not to consider the statements. People coming from there are high risk.
He said judges should not be deciding whether screening at the border is justified.
"What if he says I'm sorry every day for a year?"
The ACLU's attorney, Omar Jadwat, insisted the Trump's own words had shown that the travel ban was mostly a gesture toward filling a campaign promise. The White House said the move to ban their entry is only temporary as it involves issues of national security.
"The Establishment Clause prohibits denigrating and targeting religion", he said.
"It's possible that saying sorry is not enough, that's true in a lot of situations, your honour", Jadwat replied. "I don't want them in the country".
The ACLU and National Immigration Law Center brought the case on behalf of several organizations, as well as people who live in the USA and fear the executive order will prevent them from being reunited with family members from the banned countries. "If this order were legitimate and actually doing what it said it was doing, it would do something different", he said.
Acting Solicitor General Jeffrey Wall argued that the order was intended only to pause travel to allow an examination of vetting procedures.
Wall argued that the second order was changed significantly from the first to address some of the legal problems. In order to fulfill its stated objective on national security, he argued, it would have applied to a different set of countries than those targeted by the order.
Jeffrey Wall, the acting solicitor general, representing the Trump administration, argued that the executive order had a legitimate national security goal, allowing the government to assess the reliability of background information on visa applicants from six countries associated with terrorism.
The Richmond-based 4th U.S. Circuit Court of Appeals is scheduled to hear an hour of oral arguments in the Trump administration's appeal of a March 16 ruling by Maryland-based federal judge Theodore Chuang. If Trump loses in either court, the travel order will remain frozen for now, as the parties fight over Trump's motivation or if the Supreme Court weighs in.
Normally, such an appeal of a district court's decision would be heard by a randomly assigned panel of three judges, and the losing party may ask for it to be reheard by the full court.
It is possible the court could toss out all or part of the case because only one plaintiff appears to have standing.