Trump's Own Remarks on Travel Ban May Doom It

Among other issues, the judges will also decide whether the president's own words about Muslims can be used against him.

Here's an example from a campaign rally in December of 2015.

That statement was removed Monday shortly after reporters asked White House Press Secretary Sean Spicer about it during a news briefing.

I made a determination that I believed that it was unlawful. Is that roughly the contours of this? During the pause, the administration had said it would study methods of "extreme vetting" for entrants from unsafe areas, but Wall said the studies were not completed when the courts intervened. Wall countered that the court should not look beyond the text of the executive order, which makes no mention of a Muslim ban.

JOHNSON: That is going to be the heart of the Justice Department's argument on behalf of the Trump White House today.

Trump's campaign vow to implement a Muslim ban is at the core of both lawsuits.

Wall said the president needs only a facially legitimate and bona fide reason for the order.

WILLIAM BRANGHAM: So, let's listen to one of these clips.

King said the government and the challengers, with their opposite views of the importance of Trump's campaign statements, "are like ships in the night". The Ninth Circuit Court of Appeals will hear an appeal of that ruling later in the month. "It seems to me there has to be some linkage to show that there is a detrimental interest to the United States posed by 82 million people".

"This is not a Muslim ban", Acting Solicitor General Jeffrey Wall, arguing for the government, told the judges during the hearing that lasted two hours, twice as long as scheduled.

Judge James Wynn pushed back against the administration's argument that the only rightful thing to consider is the text of the document.

MARCIA COYLE: That's right. They concluded the hearing without issuing a ruling, which could takes weeks to finalize. He said Trump was merely seeking "a brief opportunity to assure that the protections are sufficient", and that the legality of his order shouldn't be "based on what we think was in the head of the president".

Let's listen to that clip. The US administration fiercely denied it during an appeals court hearing on Monday - despite the president's campaign call for a blanket Muslim ban. What if he repudiated them all?

Omar Jadwat, attorney for the ACLU, responded promptly that deference isn't a license to violate the Constitution. I don't know whether ...

The court, once considered the most conservative appeals court in the country, now has nine judges named by Democratic presidents including Barack Obama, according to Carl Tobias of the University of Richmond School of Law. Judges should have no trouble concluding such an order would be illegitimate and unconstitutional, he said.

"What if he said he [Trump] was sorry every day for a year?" At a minimum, that's what it prohibits. "There really shouldn't be any question to why the president's doing this". "To say to so many people: You are not welcome here". The ACLU believes that this wasn't a national security goal, that this was a Muslim ban, and, because of that, a violation of the Establishment Clause. Shedd asked, drawing laughter from the courtroom. What is the ACLU saying? You told us what the government argued. So, it's not just campaign statements.

Trump has argued the temporary ban is necessary to protect Americans from possible terrorist attacks.

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.

"Which are the statements are relevant here?"

Trump has vowed to fight the latest "flawed" ruling all the way to the Supreme Court.

WILLIAM BRANGHAM: Marcia Coyle, as always, thank you so much.