On travel ban, Supreme Court considers ‘the president’ vs. ‘this president’

WASHINGTON — The Supreme Court’s final oral argument of the term will be one of its most important and potentially far-reaching, an examination of the president’s authority to protect the country by banning some foreigners who seek entry.

But, similar to a debate that has consumed Washington, D.C., for the past 15 months, a major issue for the court is separating “the president” from “this president.”

The justices on Wednesday will consider President Donald Trump’s third iteration of a travel ban that bars most nationals from a small group of mostly Muslim nations. It is the first time the court has considered the merits of a policy that has consumed the administration since its start, and raises deep questions about the judiciary’s role in national security issues usually left to the political branches.

The first version of the ban was issued just a week after Trump took office, and lower courts have found that it and each reformulated version since has exceeded the authority granted by Congress and was motivated by Trump’s prejudice – animus, as courts like to say – toward Muslims.

The state of Hawaii, which is leading the challenge of the ban, told the Supreme Court:

“For over a year, the president campaigned on the pledge, never retracted, that he would ban Muslims from entering the United States.

“And upon taking office, the president issued and reissued, and reissued again, a sweeping and unilateral order that purports to bar over 150 million aliens – the vast majority of them Muslim – from entering the United States.”

Hawaii’s brief, by Washington lawyer Neal Katyal, cites not only Trump’s campaign comments but also his actions as president, including the time he retweeted “three anti-Muslim propaganda videos” from a widely condemned far-right British organization.

This led to a response by the solicitor general of the United States to the justices of the Supreme Court that could only have been written in this era, about this chief executive:

“The president’s retweets do not address the meaning of the proclamation at all.”

Solicitor General Noel Francisco urged the court not to get distracted by the president’s bluster - he’s said nice things about Muslims, too, the brief states - and to keep its examination on the law.

“The Constitution and acts of Congress . . . both confer on the President broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the nation’s interest,” Francisco wrote.

If the president’s comments and tweets were not a factor, many legal experts said the court would likely extend the deference to the political branches it has shown in the past when considering issues of immigration and national security.

Washington lawyer Gregory Garre, who defended executive authority as President George W. Bush’s solicitor general, said the law makes such respect clear.

“No matter where the court ends up, the president starts with two significant pluses – the executive’s inherent constitutional authority over foreign affairs and a textually broad grant of authority by Congress to regulate the entry of aliens determined to be detrimental to the interests of the United States,” Garre said.

Los Angeles lawyer Theodore Boutrous agrees, with a caveat: But Trump.

“This case comes to the court with this backdrop of a president who has been shattering norms, even brazenly saying they don’t matter,” said Boutrous, who filed a brief on behalf of the U.S. Conference of Catholic Bishops urging the court to strike down the ban.

His brief on behalf of the bishops said that the travel ban is a result of “blatant religious discrimination” and that it “poses a substantial threat to religious liberty that this court has never tolerated before and should not tolerate now.”

Trump’s efforts to ban certain travelers has a complicated backstory. He first issued a proclamation banning travel from certain countries a week after taking office. It went into effect immediately, causing chaos and protests at airports around the world.

The U.S. Court of Appeals for the 9th Circuit issued an injunction. Instead of appealing to the Supreme Court, the administration enacted a second version of the plan. That was stopped by two regional courts of appeals.

Before the Supreme Court could consider the merits of the second plan, the administration in September announced a new one.

It blocked entry into the United States of most people from Chad, Iran, Libya, Somalia, Syria and Yemen, and certain visitors from North Korea and Venezuela. The latter two countries are not part of the challenge before the Supreme Court, and the administration on April 10 removed Chad from the list.

Francisco told the court that the third edition of the ban responds to the criticisms by lower courts of the first two, and was the result of a “worldwide review of the processes for vetting aliens seeking entry from abroad.”