Conservative members of the Supreme Court appeared to signal Wednesday that they are inclined to uphold President Trump’s third travel ban, setting the stage for what could be a major victory for the administration.
Hearing oral arguments in the blockbuster case, the court grappled with whether Trump has the legislative and constitutional powers to ban travelers from certain countries.
The latest policy, issued by a presidential proclamation, initially limited travel into the United States by people from Iran, Libya, Syria, Somalia, Yemen and Chad, though the White House announced earlier this month it was dropping Chad from the list.{mosads}
The challengers argue that Trump’s policy is a “Muslim ban” that discriminates against immigrants based on their religion, violating both the Immigration and Nationality Act (INA) and the establishment clause of the Constitution.
But Justice Samuel Alito, a member of the court’s conservative wing, took issue with that argument.
“There are other justifications that jump out as to why these particular countries were put on the list,” Alito said. “So it seems to me the list creates a strong inference that this was not done for that invidious purpose.”
Chief Justice John Roberts questioned whether, under the plaintiff’s argument, any targeted action against a majority-Muslim country could be seen as discriminatory.
“What if the military advisers tell the president that in their judgment, the president ought to order a strike, an air strike against Syria … does that mean he can’t because you would regard that as discrimination against a majority-Muslim country?” he asked.
But Justice Sonia Sotomayor, a member of the court’s liberal wing, noted that Congress has already set limits on immigration to address security concerns about nationals from countries that support terrorism.
“Where does the president get the authority to do more than Congress has already decided is adequate?” she asked.
A point of contention in the lawsuit — which was brought by the state of Hawaii, the Muslim Association of Hawaii, the group’s Imam Dr. Ismail Elshikh and two unnamed individuals — is whether Trump’s campaign statements and tweets during his presidency prove his proclamation was based on an animus towards Muslims.
The government maintains that the restrictions are the byproduct of a multiagency, worldwide review of whether countries are cooperating with America’s vetting procedures for travelers and immigrants.
Solicitor General Noel Francisco, who argued the case for the government, compared Trump’s order to the proclamation President Carter issued on Iran and the proclamation President Reagan issued with respect to Cuba.
Justice Anthony Kennedy, who is often the court’s swing vote, noted that Trump’s proclamation is longer and more detailed than the ones issued by Carter and Reagan.
Justice Elena Kagan, an appointee of President Obama’s, pressed the government on its argument that the president has broad power over the creation and administration of the immigration system.
She gave a hypothetical of an anti-Semite being elected as president after saying denigrating things about Jews during the campaign. Would such a president, she asked, still have the broad power to issue a proclamation banning people from Israel, or could a court intervene?
Francisco called it a “tough hypothetical,” but maintained that the president could if the Cabinet were to say, “‘There is honestly a national security risk here, you have to act,’ I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”
“This is an out-of-the-box-type of president in my hypothetical,” Kagan said, drawing laughs from the crowd.
“We don’t have those, your honor,” Francisco said with a laugh.
Kagan then asked what reasonable observers are to think, given this context, even if there are true national security reasons for issuing such a proclamation.
Kennedy then gave a hypothetical of his own about a local mayor who made hateful statements during his campaign and two days after he took office took actions consistent with those previous remarks.
“You would say whatever he said in the campaign is irrelevant?” Kennedy asked Francisco.
On the campaign trail, Trump promised “a total and complete shutdown of Muslims entering the united States” and re-tweeted anti-Muslim videos after issuing the third iteration of his ban while in office.
But Francisco said Trump’s proclamation is not a Muslim ban.
“If it were, it would be the most ineffective Muslim ban that one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad and Sudan,” he said.
Kennedy also pushed the plaintiff’s attorney, Neal Katyal, on his argument that Trump’s proclamation exceeds his legislative authority.
Katyal said the plaintiffs wouldn’t have a problem if the proclamation were tailored to a national security crisis and ended at some point.
“So you want the president to say, ‘I’m convinced that in six months we’re going to have a safe world?’” Kennedy asked.
In a statement ahead of arguments, Attorney General Jeff Sessions defended the “travel order” as necessary for national security.
“President Trump has been steadfast in his commitment to the safety and security of all Americans,” Sessions said. “The Constitution and Acts of Congress confer on the President broad discretion and authority to protect the United States from all foreign and domestic threats.”
The oral arguments had been highly anticipated, as it is the first time the Supreme Court has grappled with Trump’s evolving travel policy.
The court initially agreed to consider a challenge to Trump’s second travel ban last term. That order banned people from Iran, Libya, Syria, Yemen, Somalia and Sudan from coming to the United States, but the court decided to dismiss the case as moot when the policy expired before the scheduled arguments.
A number of prominent people attended Wednesday’s hourlong arguments, including Broadway star and “Hamilton” creator Lin-Manuel Miranda, Sens. Mazie Hirono (D-Hawaii) and Orrin Hatch (R-Utah), House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and the late Justice Thurgood Marshall’s widow Cecilia, who sat next to White House counsel Don McGahn.
Hans von Spakovsky, a Trump ally and former member of the president’s now-defunct election fraud commission, was also in the courtroom.
The court received a little over a dozen friend of the court briefs from parties urging the court to uphold the ban and over four dozen urging the court to strike it down.
The United States Conference of Catholic Bishops called the president’s proclamation a repugnant display of discrimination that threatens religious liberty.
Democrats in the House and Senate said in a friend of the court brief on behalf of Hawaii and the other plaintiffs that “there is no legitimate purpose — independent of religious animus — for the Proclamation’s sweeping, gerrymandered prohibitions.”
The court gave Trump an early win in December when it allowed the full ban to take effect, at the government’s request.
– Updated at 2:46 p.m.