Trump’s talk, tweets dominate travel ban case

Words, intent take center stage as measure goes before Supreme Court

WASHINGTON – The question before the Supreme Court Wednesday on President Trump’s immigration travel ban could go something like this: What did the president say, and when did he say it?

The 2018 version of the phrase made famous by the late Sen. Howard Baker during the Watergate hearings in 1973 – “What did the president know, and when did he know it?” – is central to determining whether Trump’s policy is both legal and constitutional.

After all, it has been more than two years since Trump-as-presidential candidate called for a“total and complete shutdown of Muslims entering the United States.”

It has been more than a year since Trump-as-president signed an executive order banning travelers from seven majority-Muslim countries, only to see it blocked in court.

And it has been five months since Trump ventured into rhetorical overdrive regarding the third version of his travel ban by retweeting a far-right British group’s anti-Muslim videos alleging atrocities such as “Muslim Destroys a Statue of Virgin Mary!”

Were it another president, the question before the high court likely would concern only the scope of presidential powers in areas of foreign policy and immigration.

But this is no ordinary president, and for that reason, the long-overdue Supreme Court showdown is extraordinary.

“The president’s order,” says Neal Katyal, attorney for the challengers to Trump’s travel ban, “is without parallel in our nation’s history.”

So it’s fitting that on Wednesday, the Supreme Court should finally get its say, on the last day for oral arguments in its current term. It has been a long time coming.

Last June, after federal appeals courts struck down the second version of the travel ban, the justices said citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen without close ties to the U.S. could be barred for up to 90 days while vetting procedures were reviewed. Travelers with a “bona fide” connection were allowed to enter.

After Trump changed the policy in September – subtracting Sudan, adding Chad, North Korea and Venezuela, setting separate criteria for each country and making it indefinite rather than temporary – federal courts again struck it down. But the high court let it take effect while the case was appealed.

Hanging in the balance now are nearly 150 million could-be travelers from Iran, Libya, Somalia, Syria and Yemen, as well as others who may be protected or threatened by the Supreme Court’s decision.

Chad, a sixth majority-Muslim nation, was removed from the list earlier this month. North Korea and Venezuela are neither Muslim nor nations of frequent U.S. emigration.

Now it will be Trump’s words – from his campaign promises to his presidential tweets – that will be front and center, as evidenced by the Justice Department’s filing with the court last week:

“The president’s retweets,” Solicitor General Noel Francisco felt compelled to write into the high court’s history books, “do not address the meaning of the proclamation at all.”

But they provide great fodder for the ban’s challengers.

The case reaches the Supreme Court from two liberal federal appeals courts – the 9th, based in San Francisco, and the 4th, based in Richmond, Va. Those courts and the district judges below have said courts can and should examine the purpose behind government actions; that Trump’s words reveal his purpose to be, at least in part, banning Muslims; that his initial focus on six majority-Muslim nations was but a means to that end; and that Trump as president cannot distance himself from Trump as candidate.