If Trump hadn’t made anti-Muslim comments, his travel ban might have been fine, opposing attorney says

President Donald Trump’s travel ban was the subject of federal court proceedings for the second time in a week on Monday, as judges and attorneys discussed how much weight to give to Trump’s past comments about Muslims.

Seattle’s Ninth Circuit, which thwarted the first iteration of Trump’s ban, has been a frequent target of the president’s angry tweets. Now it will decide whether to lift the injunction on a subsequent version of the ban that was blocked hours before it was set to go into effect on March 16 by U.S. District Court Judge Derrick K. Watson of Hawaii.

That version sought to temporarily suspend travel and immigration to the U.S. from six Muslim-majority countries and temporarily freeze the U.S. refugee program. The president of the U.S. has broad powers to make such changes in the interest of national security.

In his decision, Watson cited Trump’s comments on the campaign trail calling for a “total and complete shutdown of Muslims entering the United States.” Although the second travel ban made no mention of Islam, its challengers contend that its underlying intent is to prevent Muslims from entering the country.

Acting U.S. solicitor general Jeffrey Wall, arguing on behalf of the Trump administration, maintained that the president acted within his rights and that he should not be beholden to “campaign trail statements” that he made as “a private citizen.”

Neal Katyal, a former acting U.S. solicitor general now arguing on behalf of Hawaii, acknowledged that if Trump had not made the comments concerning a Muslim ban, the executive order might have been acceptable.

“Context matters,” Katyal told the court. “You just must ask what an objective observer would think. These statements continued until last month. He said he’s going to be helping the Christians ‘big league.”’

Katyal also reminded the judges that a press release stating Trump’s intent to bar Muslims from entering the country remained on his campaign website until shortly before Maryland’s Fourth Circuit heard arguments in a separate travel-ban case May 8. That case is focused primarily on the provision of the ban that sought to suspend entry into the U.S. from six Muslim-majority countries. In the case being heard in Hawaii, the plaintiffs took issue with a broader swath of the ban.

Rulings are not expected in the cases for several weeks.