Trump travel ban challenge in appeals court Monday

May 8, 2017 at 12:45

The suit in front of the 4th Circuit on Monday was brought by several refugee rights organizations, along with individual plaintiffs who claim the executive order, if allowed to go into effect, would separate them from loved ones abroad.

(CNN) - President Donald Trump's travel ban is back in the spotlight Monday with a high-stakes legal battle in front of a dozen federal judges in Richmond, Virginia.

Nearly two months ago, a federal judge in Maryland imposed a nationwide halt to the core portion of the President's revised executive order that sought to bar foreign nationals from six majority-Muslim countries from entering the US for 90 days. The judge concluded, largely drawing on Trump's past statements, that the travel ban likely violates the Constitution by disfavoring Muslims, and the Justice Department appealed that decision in March.

Now the case is in the hands of a federal appeals court considerably reshaped by former President Barack Obama's six appointments to the bench.

Normally, such an appeal from 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.

Yet in this case, the judges on the 4th US Circuit Court of Appeals decided it should be heard by the full court -- otherwise known as "en banc" -- in the first instance. Ten of the 15 active judges on the court are either Clinton or Obama appointees, and CNN has learned that at least one of the more reliably conservative votes is off the table, which means the overall composition of the left-leaning court could determine the outcome.

A source familiar with the case tells CNN that Judge J. Harvie Wilkinson III -- a Reagan appointee and one of the most highly respected judges on the court -- has recused himself from the case because his son-in-law and former law clerk, acting Solicitor General Jeffrey B. Wall, will be representing the Trump administration at Monday's hearing. Judge Allyson Duncan, who was appointed by former President George W. Bush, also has stepped aside.
That means 10 of the 13 judges that will hear Monday's case were appointed by Democrats.

What's at stake?

This is not the Trump administration's first legal showdown over the President's travel ban.

The original executive order was swiftly blocked nationwide by a federal judge in Seattle, the 9th US Circuit Court of Appeals refused to reinstate it, and then the administration spent over a month rewriting it, exempting several categories of foreign travelers and taking care to make no express mention of religion -- all in the hopes of avoiding legal scrutiny for a second time around.

Yet statements from Trump and his advisers, especially when combined with his continued inclusion of a 90-day ban on foreign nationals from six Muslim-majority countries in the revised executive order, have proved -- at least for now -- insurmountable in court.

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