Overnight Regulation: White House back in court to defend travel ban

Welcome to Overnight Regulation, your daily rundown of news from the federal agencies, Capitol Hill, the courts and beyond. It’s Monday evening here in Washington where President Trump’s decision to fire FBI Director James Comey has thrown newly minted Deputy Attorney General Rod Rosenstein into the spotlight. The Hill’s Jonathan Easley has that story here. And the White House is refusing to say if Trump has recordings of his conversations with Comey. The Hill’s Jordan Fabian has more on that here.

 

THE BIG STORY 

The administration headed back to court Monday to defend President Trump’s travel ban.

Three judges on the 9th Circuit Court of Appeals in Seattle heard the government’s claim that a Hawaii district judge was wrong in blocking the travel order nationwide.

Trump’s order seeks to temporarily ban nationals from six majority-Muslim countries from entering the U.S., as well as refugees. 

Acting Solicitor General Jeffrey Wall argued that both the Constitution and an act of Congress give the president broad authority to prevent aliens abroad from entering the country when he deems it appropriate for the safety of the nation.

{mosads}The three judges — all appointed by President Bill Clinton — grappled with whether to consider Trump’s statements during the presidential campaign about banning Muslims.

“The executive order sets out national security justifications, but how is a court to know if in fact it’s a Muslim ban in the guise of national security justifications?” Judge Ronald Gould asked.

Wall said past precedent does not call on the court to make that sort of determination or second-guess the national security determinations of the president.

Judge Michael Day Hawkins repeated a question a 4th Circuit judge asked last week.

“Has the president ever disavowed his campaign statements? Has he ever stood up and said, ‘I said before I wanted to ban all members of the Islamic faith from entering the United States of America, I was wrong. I’ve consulted with lawyers, I’m now addressing it simply for security needs’?”

Wall claimed Trump has.

“Over time, the president clarified that what he was talking about were Islamic terrorist groups and the countries that shelter or sponsor them,” he said. “And over time, he and his advisers clarified that what he was focused on was groups like ISIS and al Qaeda.”

Last week, nine judges on the Richmond, Va.-based 4th Circuit Court of Appeals heard arguments in the government’s appeal of a separate order blocking the ban from a district court judge in Maryland.

Neal Katyal, former acting solicitor general under President Barack Obama, represented Hawaii on Monday. He argued the ban constitutes nationality-based discrimination given what Trump said during the campaign.

Though the statements were profound, Judge Richard Paez said, it’s a little concerning that they were made in the midst of a highly contentious campaign.

“Don’t you need to look at it from that perspective as well?” he said.

But Katyal countered that Trump rekindled those statements in actions as president.

“First, when he issued the first executive order, he read the title of the executive order, looked up at the camera and said, ‘We all know what that means,’ ” he said. “If it was clear from the title what it meant, he wouldn’t have had to say it.”

When he issued both executive orders, Katyal noted that his statements about banning Muslims were still on his campaign website.

“You don’t, your honor, need to be Sigmund Freud in order to affirm the district court,” he said. “You simply must ask, as the Supreme Court has told you, what would an objective observer think with these sorts of statements.”

In February, the 9th Circuit refused to reinstate Trump’s first travel ban after it was blocked by a federal district court judge in Washington. 

To address the court’s concerns, Trump revised the order and removed Iraq from the list of banned countries, removed an indefinite ban on Syrian refugees and eliminated language that gave preference to religious minorities when the refugee program resumed.

Trump has repeatedly attacked the Ninth Circuit for ruling against his first travel order. Late last month, he said he was looking at ways to break up the court, which has long been a target of conservatives.

In one tweet in April, Trump said the court has a “a terrible record of being overturned (close to 80%). They used to call this ‘judge shopping!’ Messy system.”

Click here for the story.

 

ON TAP FOR TUESDAY 

The Senate Banking, Housing and Urban Affairs Committee will hold a hearing to consider the nominations of Sigal Mandelker to be Under Secretary for Terrorism and Financial Crimes, Marshall Billingslea to be Assistant Secretary for Terrorist Financing, and Heath Tarbert to be an Assistant Secretary — all at the Department of the Treasury. Mira Radielovic Ricardel will also be considered for Under Secretary of Commerce for Export Administration.

The Senate Environment and Public Works Subcommittee on Transportation and Infrastructure will hold a hearing to look at ways to leverage federal funding for infrastructure projects. 

 

TOMORROW’S REGS TODAY 

Voter fraud: President Trump will publish his executive order establishing a commission to study registration and voting processes used in federal elections.

Vice President Mike Pence will chair the Presidential Advisory Commission on Election Integrity, which will be made up of up to 15 members appointed by the president.

Trump signed the order last week to start an investigation into his claim of mass voter fraud during the 2016 election. Trump has so far provided no evidence to back up the claim.

Internet providers: The Federal Communications Commission is proposing a rule to make it easier for broadband internet providers to build, maintain, and upgrade their network.

Under the rule, FCC wants to streamline and accelerate its five-month timeline for processing company requests to connect to utility poles. 

The public has 30 days to comment on the proposed rule.

 

NEWS RIGHT NOW 

Supreme Court sides with nursing home in arbitration case

Supreme Court refuses to hear appeal in NC vote ID case

Lawmakers push back against Trump offshore drilling review

US, Europe to engage in ‘high-level’ talks over laptop ban

White House will let small businesses circumvent HealthCare.gov

FTC goes after tech support scams

John Oliver urges net neutrality supporters to tone down FCC comments

Former Pentagon chief: Arctic drilling order could threaten security

Senators search for compromises over House’s drastic Medicaid changes – The New York Times 

Trump reassures farmers immigration crackdown not aimed at their workers – Reuters 

 

BY THE NUMBERS 

6: Number of proposed rules federal agencies will issue Tuesday 

11: Number of final rules federal agencies will issue Tuesday  

(Source: Federal Register)

We’ll work to stay on top of these and other stories throughout the week, so check The Hill’s Regulation page (http://digital-stage.thehill.com/regulation) early and often for the latest. And send any comments, complaints or regulatory news tips our way, tdevaney@digital-stage.thehill.com or lwheeler@digital-stage.thehill.com. And follow us at @timdevaney and @wheelerlydia.