Justices wary of challenge to travel ban
Supreme Court seems to support president
WASHINGTON: The Supreme Court’s fivemember conservative majority appeared prepared on Wednesday to sustain US President Donald Trump’s authority to impose a travel ban restricting entry into the United States from several predominantly Muslim countries.
Those justices seemed ready to defer to Mr Trump’s presidential national-security judgements and to discount his campaign promises to impose a “Muslim ban”.
Immigrant rights groups had hoped that Chief Justice John Roberts or Justice Anthony Kennedy would join the court’s four-member liberal wing to oppose the ban. But their questioning was almost uniformly hostile to the challengers.
Just a week after he took office, Mr Trump issued his first travel ban, causing chaos at the nation’s airports and starting a cascade of lawsuits and appeals. Fifteen months later, after two revisions of the ban and a sustained losing streak in the lower courts, the Supreme Court took up the case in its last scheduled argument of the term.
Although the court had considered aspects of an earlier version of the travel ban, this was the first time the justices heard arguments on any of the challenges. A decision is expected by late June.
The case, Trump v Hawaii, No. 17-965, concerns Mr Trump’s third and most considered bid to make good on his campaign promise to secure the nation’s borders. Challengers to the latest ban, issued as a presidential proclamation in September, said Mr Trump’s campaign speeches and tweets about Muslims were a clear indication that the ban was aimed at a particular religious group and not justified by security concerns.
The administration said the third order was the product of careful study by several agencies into the security and information-sharing practices of nations around the world. The president’s lawyers urged the courts to ignore Mr Trump’s statements and Twitter posts, and to focus solely on the text of the proclamation and the process that produced it.
Several justices asked Solicitor General Noel J Francisco about the government’s national security justifications for the travel ban, pressing him to explain why the restrictions should not be seen as tainted by religious animus.
Justice Elena Kagan offered a hypothetical situation in which a future president who is “a vehement anti-Semite and says all kinds of denigrating comments about Jews” comes into office and bans entry to the United States from Israel.
“The question is, what are reasonable observers to think given this context?” Ms Kagan asked, adding that she was asking about an “out-of-the-box kind of president”.
Mr Francisco acknowledged that “this is a very tough hypothetical”. But he said such a proclamation could be lawful.
“If his cabinet were to actually come to him and say, ‘Mr President, there is honestly a national security risk here and 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,” Mr Francisco said.
He rejected the suggestion that the proclamation was meant to ban Muslims from entering the United States.
“This is not a so-called Muslim ban,” he said. “If it were, it would be the most ineffective Muslim ban that one could possibly imagine.” It excluded, he said, “the vast majority of the Muslim world.”
Justice Samuel Alito added his own statistics.
“I think there are 50 predominantly Muslim countries in the world,” he said. “Five predominantly Muslim countries are on this list. The population of the predominantly Muslim countries on this list make up about 8% of the world’s Muslim population. If you looked at the 10 countries with the most Muslims, exactly one, Iran, would be on that list of the top 10.”
Neal K Katyal, a lawyer for the challengers, rejected that analysis. “If I’m an employer and I have 10 African-Americans working for me and I only fire two of them” but retain the other eight, he said, “I don’t think anyone can say that’s not discrimination.”
Mr Kennedy pressed Mr Katyal about whether judges should second-guess a president’s national security judgements. “That’s for the courts to do, not the president?” he asked, sceptically.
Mr Katyal responded that presidents ordinarily deserve substantial deference. But he said the travel ban was so extreme that the Supreme Court should step in.
Mr Kennedy noted the latest travel ban was more detailed than proclamations by previous presidents.