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The New Travel Ban Is an Abomination. Why Have We Stopped Caring?

Demonstrators at Los Angeles International Airport march in opposition to the first Muslim Ban in February.
Demonstrators at Los Angeles International Airport march in opposition to the first Muslim Ban in February.
David McNew/Getty Images

Way, way back in February, a three-judge panel of the United States Court of Appeals for the 9th Circuit heard oral arguments in State of Washington v. Trump, the first iteration of the first appeal of the first attempt at Donald Trump’s travel ban. This version was a hastily executed implementation of the president’s promise to create a Muslim ban, signed on Jan. 27, just a week after Trump took office.

America was riveted, listening eagerly to arguments broadcast without images and parsing—or trying to parse—complicated appellate questions about standing, and justiciability, and religious animus. As the court ultimately found—before this first version was pulled from commission and replaced with a new one—Trump’s ban trampled over all sorts of due process rights.

Almost a year later, a different panel of the 9th Circuit heard on Wednesday a different oral argument, about a third iteration of a Trump executive order limiting immigration from some majority-Muslim countries. This one, though, was offered without the glare of national media and by seemingly worn-out advocates. More than anything, the argument was reminiscent of one of those old-timey dance marathons, in which weary partners pushed one another around a high school gymnasium in the futile hope that anything might still matter.

Wednesday’s effort made the second argument about the very same issues from May seem positively zippy (May? Remember May??). But here we are in December, and the travel ban has been sanitized and then sanitized again. The current version, announced in September, targets 150 million travelers from Muslim-majority countries Chad, Iran, Libya, Somalia, Syria, and Yemen, as well as the non–Muslim majority outlier North Korea along with some Venezuelan government officials. It was promptly blocked by judges before it went into effect, and on Monday the Supreme Court allowed it to go forward for the time being, warning the appeals courts that they had better rule quickly.So here in December, it is now being defended by seemingly competent counsel, despite the fact that—if one noticed such things anymore—the president was tweeting Muslim revenge porn only a week ago.

Judges Ronald Gould, Richard Paez, and Michael Hawkins hear arguments in Hawaii’s challenge to the ban. As Justice Department lawyer Hashim Mooppan quickly reveals, this case will involve litigants again pushing one another warily across that aforementioned metaphorical dance floor. That dance will occur while equally wary federal appellate judges try not to express how much they apparently loathe the legal power-wash that has enabled this contemptible executive order and its contemptible defenders to stand before them once again and constantly repeat words like a fortiori, as though the casual deployment of arcane Latin might signal some form of analysis, or reason, or virtue, or lawfulness.

Mooppan also says the words “multi-agency review” a whole bunch, and the three judges challenge him repeatedly on his basic premise. That notion seems to be that the president’s authority to make decisions about “the national interest” is more or less unbounded. Certainly, as he argues, this is all unreviewable by federal courts, maybe because he said “a fortiori” a lot. Without doubt Mooppan believes that Donald Trump is making us safer from potentially marauding foreigners. The judges find these arguments silly and also exhausting.

During his turn at the podium, former acting Solicitor General Neal Katyal insists that this whole enterprise is like a coin machine into which someone has shoved buttons to jam up the works, and that the government has made exactly zero showing that a travel ban that was unnecessary way back in January is necessary now.* But even Katyal is wiped out, buttons notwithstanding. As he builds to a powerful rhetorical closing argument about the president’s anti-Muslim tweets from last week, the panel stops him, because maybe the religious animus and bad-faith aspect of the case has now officially faded away thanks to Father Time, who is roaming the dance floor, disqualifying people in crumpled prom dresses simply because it’s late and they are slurring.

We should all possibly care about travel ban 3.0 and its cretinous defenders a whole lot more than we apparently do, simply because it’s permanent, it’s nearly as bad as the original, and the Supreme Court appears inclined to tolerate it. Thousands of people will be harmed for no reason other than Donald Trump dislikes Muslim countries and crafted a nearly legal theory to achieve his ban after two abject failures.

A fortiori, for the record, means an argument made with greater reason or more convincing force. Who knew that something so grotesquely cynical and cruel as this travel ban could become a fortiori, just from sheer wariness, repetition, and fatigue?

*Correction, Dec. 7, 2017: This post originally misstated that Neal Katyal was the former solicitor general. He served as the acting solicitor general.

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