Travel ban has better day in court
Divided justices’ debate suggests support is there
WASHINGTON – A divided Supreme Court gave President Trump’s immigration travel ban a better reception Wednesday than it has received in lower courts over the past 15 months, raising the chances that the court will uphold restrictions on travelers from five predominantly Muslim countries.
The court’s conservative justices appeared sympathetic to the administration’s contention that it has the authority to limit immigration in the name of national security. They voiced skepticism about the relevance of Trump’s campaign promises and statements regarding Muslims.
“If you look at what was done, it does not look at all like a Muslim ban,” Justice Samuel Alito said, noting that the order applies to about 8% of the world’s Muslims. “There are other justifications that jump out as to why these particular countries were put on the list.”
The court’s outnumbered liberals expressed doubts about the president’s power to ban travelers indefinitely despite congressional law and said even his tweets on the subject can be used to decipher his motives. They
“If you look at what was done, it does not look at all like a Muslim ban.”
Justice Samuel Alito
raised concerns about the ban’s indefinite duration and waiver procedures.
“Where does a president get the authority to do more than Congress has already decided is adequate?” Justice Sonia Sotomayor said.
Though justices often don’t indicate during oral argument which way they will vote, only Justice Anthony Kennedy among the court’s five conservatives sounded conflicted. Like Alito, Chief Justice John Roberts and Justice Neil Gorsuch saved most of their questions for the challengers. Justice Clarence Thomas remained silent.
Roberts was animated in his defense of a president’s power. If the government had intelligence that Syrian nationals were coming with chemical and biological weapons, he said, shouldn’t the government be able to stop it?
The four liberal justices peppered the government’s side with questions, but they did not seem bent on swaying their conservative colleagues. Justice Stephen Breyer’s main concern was the trouble faced by travelers from five majorityMuslim countries seeking waivers.
Around the time Trump was scheduled to get his daily intelligence briefing at the White House, Justice Elena Kagan noted courts “are not equipped” to evaluate national security interests.
The lively, hour-long oral argument represented the penultimate action in a debate dating back to the first weeks of Trump’s presidency and even to his volatile campaign for the White House. A final decision is likely at the end of June.
The legal battle began immediately after Trump issued his first travel order in the first week of his presidency last January. That 90-day ban on travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, and a 120-day ban on refugees worldwide, was struck down by federal district and appeals courts the next month.
Trump’s second version, issued in March, dropped Iraq from the list and exempted holders of visas and green cards It fared no better, getting struck down last spring before the high court ruled in late June that travelers without close ties to the USA could be barred while vetting procedures were reviewed.
After Trump issued his third version in September — subtracting Sudan; adding Chad, North Korea and government officials of Venezuela; setting separate criteria for each country; and making the order indefinite rather than temporary — federal courts again struck it down. In December, the justices allowed it to go into effect, and in January, they scheduled it for oral argument.
Hanging in the balance are nearly 150 million residents of Iran, Libya, Somalia, Syria and Yemen. Chad, also majority-Muslim, was removed from the list this month. North Korea and Venezuela are not part of the legal battle.
U.S. Solicitor General Noel Francisco urged the justices to take note of the third travel ban’s specificity, such as the varying levels of restrictions for different countries and six-month reporting requirements. That elicited praise from Kennedy, who called it “longer than any proclamation that I’ve seen in this particular area.”
But Kennedy joined the court’s more liberal justices in wondering how Trump’s campaign statements against Muslims might infect his policies. If a mayoral candidate made hateful statements, then acted on them once elected, he said, wouldn’t that be relevant?
Francisco shot back: “This is not a socalled Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine.”
Neal Katyal, the former Obama administration acting solicitor general representing Hawaii and others affected by the ban, said the president’s actions effectively replaced part of a congressional law with a ban lawmakers rejected. “Congress is in the driver’s seat when it comes to immigration,” he said. The travel ban takes an “iron wrecking ball to the statute.”
The California- and Virginia-based federal appeals courts that ruled against Trump said that courts can examine the purpose behind government actions and that Trump’s words showed he sought to ban Muslims.
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.