Supreme Court leans to upholding travel ban
Conservatives favor presidential authority
WASHINGTON — The Supreme Court’s conservative justices sounded ready Wednesday to uphold President Donald Trump’s travel ban, potentially giving the embattled White House a big legal victory after a series of defeats in the lower courts.
Chief Justice John Roberts and Justice Anthony Kennedy portrayed the issue before the court as one of national security in which the chief executive, not the judicial branch, should be entrusted to weigh possible threats from foreign visitors.
“Could the president ban the entry of Syrian nationals” if he had evidence that some Syrians had chemical or biological weapons? Roberts asked a lawyer challenging Trump’s travel ban.
Even the lawyer for the challengers had to agree the answer was yes.
But attorney Neal Katyal, representing the state of Hawaii, said federal law gives the president only temporary authority to exclude certain people, not to impose a broad
ban that would cover an entire nation and stay in place indefinitely.
The president should go to Congress if he wants a “flat ban” on new immigrants from certain nations, Katyal said.
“Imagine, if you can, that Congress is unable to act when the president asked for legislation,” Roberts said to laughter in the courtroom. He suggested the immigration laws authorize the president to bar foreign travelers to protect the nation’s security.
Kennedy said he did not see why the president’s order had to have a time limit. “Do you want the president to say: ‘I’m convinced in six months we will have a safe world?’ ” he said in a sarcastic rejoinder.
At issue now is the third version of a travel ban. It bars the entry of most immigrants and travelers from Iran, Syria, Yemen, Somalia, Libya and North Korea as well as officials from Venezuela. Earlier versions included Chad, Sudan and Iraq.
Since Trump first issued his travel order, setting off widespread chaos at airports just a few days after his inauguration, the issue has strongly shaped public perceptions of the new administration. It has also led to a string of defeats in lower courts, where judges ruled that the measure exceeded Trump’s authority and, in some cases, said it reflected bias against Muslims.
The Supreme Court has provided a friendlier forum, however. The justices issued a ruling in June that allowed the second version of the travel ban to take partial effect. Then, in December, with only two dissents, they set aside lower-court rulings to allow the administration to put the third version into practice, a strong indicator of where the majority was headed.
Wednesday, along with Roberts and Kennedy, two other members of the court’s conservative wing clearly seemed inclined to uphold Trump’s order.
Along with Justice Clarence Thomas, who made no comments, they would appear to provide five solid votes to provide the administration with a victory.
Justice Samuel Alito rejected the notion that Trump’s order could be considered a “Muslim ban,” noting it does not apply to most of the largest Muslim nations.
“If you look at what was done, it does not look like a Muslim ban,” he said.
Justice Neil Gorsuch, Trump’s appointee, questioned whether the challengers had standing to sue in the first place.
Foreigners overseas do not have rights in U.S. courts, he said. Plaintiffs who live in Hawaii sued, contending the travel ban was illegal, but “third parties can’t vindicate the rights of aliens,” Gorsuch said.
During the first half-hour of the argument, the court’s liberals, led by Justices Elena Kagan and Sonia Sotomayor, suggested Trump’s order reflected unconstitutional religious bias.
“So let’s say in some future time, a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews,” Kagan said in a question posed to
Solicitor Gen. Noel Francisco.
And suppose the new president then issues “a proclamation that says no one shall enter from Israel.” What are “reasonable observers” to think? she asked.
“It’s a tough hypothetical,” Francisco conceded. “But it’s why I think that this is a relatively easy case.”
The current version of the travel ban emerged from a “multi-agency review” and a recommendation from the president’s Cabinet, he said. “This is not a so-called Muslim ban. If it were, it would be the most ineffective Muslim ban since ... it excludes the vast majority of the Muslim world.”
Sotomayor said she was unimpressed with the claim that the travel ban came from a multi-agency review and not solely from the president.
“He can hire and fire anyone he wants,” she said, adding that a president could dictate to Cabinet officials what they should approve.
Francisco said the president’s Cabinet officers are “duty-bound to protect and defend the Constitution” and “would resign in the face of a plainly unconstitutional order.”