USA TODAY International Edition
Trump’s words dominate travel ban case
Talk, tweets an issue in front of Supreme Court
WASHINGTON – The question before the Supreme Court Wednesday on President Trump’s immigration travel ban could go something like this: What did he say, and when did he say it?
The 2018 version of the phrase made famous by 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.
It’s been more than two years since presidential candidate Donald Trump called for a “total and complete shutdown of Muslims entering the United States.” It’s been more than a year since President Trump signed an executive order banning travelers from certain majority-Muslim countries, only to see it blocked in court.
And its been five months since Trump ventured into rhetorical overdrive on 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 probably 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 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 Wednesday, the Supreme Court should finally get its say, on the last day for oral arguments in its term. It’s 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 USA 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. The high court let it take effect while the case was appealed.
Hanging in the balance 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 majority-Muslim nation, was removed from the list this month. North Korea and Venezuela, also named in Trump’s latest executive order, are neither Muslim nor nations of frequent U.S. emigration.
It will be Trump’s words — from his campaign promises to his presidential tweets — that will be front and center.
“The president’s retweets,” Solicitor General Noel Francisco wrote into the high court’s history books, “do not address the meaning of the proclamation at all.”
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 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; and that Trump as president cannot distance himself from Trump as candidate.
Katyal, a former U.S. acting solicitor general, will represent Hawaii and immigration rights groups Wednesday.
He contends in legal papers that “for over a year, the president campaigned on the pledge, never retracted, that he would ban Muslims from entering the United States.”
Cecillia Wang, deputy legal director at the American Civil Liberties Union, which won its 4th Circuit battle against Trump, says the consistency of Trump’s message should sway the justices.
Judges and legal analysts who defend the travel ban argue that Trump’s words cannot form the basis for a constitutional violation. It takes too much interpretation, they say, to read antiMuslim bias into an executive order or proclamation that, on its surface, is devoid of religious content.
Several judges have argued that campaign promises should be off-limits, or at least dwarfed by government actions.
“Opening the door to the use of campaign statements to inform the text of later executive orders has no rational limit,” 4th Circuit Judge Paul Niemeyer wrote in a dissent. He mused that such past history could extend to “statements from a previous campaign, or from a previous business conference, or from college.”
U.S. Solicitor General Noel Francisco wrote in a brief to the court that challengers cherry-picked Trump’s words, ignoring “the president’s many statements disclaiming religious animus and praising Islam.”
Trump’s supporters say his motives are not important compared with the travel ban’s purpose: protecting the nation from terrorism. “The law makes a clear distinction between motive and purpose,” says a brief from the Foundation for Moral Law. “The purpose of the travel ban — protecting America from terrorism — is as clear a secular purpose as anyone could possibly imagine. Candidate Trump’s motives in advocating a travel ban — whether to gain votes or any other purpose — are irrelevant.”
“The president’s order is without parallel in our nation’s history.”
Neal Katyal attorney for the challengers to President Trump’s travel ban