Legally, does it matter if Trump’s travel ban is discriminatory?

This week, a panel of three Ninth Circuit judges heard arguments about the constitutionality of President Trump’s proposed ban against Muslims from certain countries entering the United States. Does the President have wide latitude to exclude groups of people from entering the U.S.? Or is an exclusionary order combined with anti-Muslim rhetoric is unconstitutionally discriminatory?

The hearing, which took place in Seattle, is an appeal from the district court in Hawaii which blocked the ban. The travel ban placed restrictions on people entering from Syria, Iran, Somalia, Libya, Sudan and Yemen for 90 days and suspended the entry of refugee applicants from those countries for three months. Last week, a panel of the Fourth Circuit heard the appeal of a Maryland judge’s ruling on the ban, but it has not yet ruled. If those ruling disagree, the U.S. Supreme Court is expected to hear the case, but that will take months to initiate.

Government: This isn’t like the Japanese internment camps

The acting U.S. Solicitor General representing the Trump Administration argues that the president has broad latitude in determining who to let into the country. Although Trump’s campaign rhetoric was sometimes contentious, he argued, the executive order itself doesn’t mention any specific religion, so it is not discriminatory against Muslims. Moreover, it was never intended to be discriminatory — it is only meant to protect our national security.

The opponents argue that the specificity of the ban, combined with Trump’s specifically anti-Muslim statements supporting the ban, demonstrate that the travel ban is indeed discriminatory.

“This is something new and unusual,” said an attorney representing the state of Hawaii, “in which you’re saying this whole class of people, some of whom are dangerous — we can ban them all.”

One of the judges asked if the government’s logic could just as easily be used to defend the Japanese internment camps during World War II. The rounding up and imprisoning, out of fear, of American citizens of Japanese descent is now considered a low point in American history.

The acting solicitor general denied that the logic was the same. “I wouldn’t be standing here, and the U.S. would not be defending it.”

Should the president’s order be given all deference, even if most people see it as a “Muslim ban”?