Justices delve into travel ban; presidential powers, barring Muslims among arguments

Posted: April 26, 2018 at 4:30 a.m.

A protester sets up a display representing passports from countries that are subject to President Donald Trump’s travel ban during a rally Wednesday outside the Supreme Court building.

WASHINGTON -- The Supreme Court heard arguments Wednesday concerning President Donald Trump's ban on travel to the U.S. by visitors from several Muslim-majority countries.

In the court's first full-blown consideration of a Trump order, the conservative justices who make up the court's majority sounded skeptical about the need to hem in a president who has invoked national security to justify restrictions on who can or cannot step on U.S. soil.

The justices in December allowed the ban to take full effect even as the legal fight over it continued, but Wednesday was the first time they took it up in open court. Trump's stance on immigration was a centerpiece of his presidential campaign, and he rolled out the first version of the ban just a week after taking office, sparking chaos and protests at several major airports.

The ban's challengers almost certainly need either Chief Justice John Roberts or Justice Anthony Kennedy on their side if the court is to strike down the policy that its opponents have labeled as a Muslim ban.

But neither appeared receptive to arguments made by Neal Katyal, a lawyer for the ban's opponents, that Trump's rule stems from his campaign pledge to keep Muslims out of the country and is unlike immigration orders issued by any other president.

The room was packed for the court's final arguments until October, and people waited in line for seats for days. Hamilton creator Lin-Manuel Miranda was in the audience. Demonstrators protesting the ban filled the area outside the building.

Some who oppose the ban have said courts should treat Trump differently from his predecessors. But that issue was raised only obliquely from the bench when Justice Elena Kagan talked about a hypothetical president who campaigned on an anti-Semitic platform and then tried to ban visitors from Israel.

When Solicitor General Noel Francisco, defending the ban, started to answer that such a turn of events was extremely unlikely because of the two countries' close relationship, Kagan stopped him. "This is an out-of-the-box kind of president in my hypothetical," she said, to laughter.

Francisco called it a "tough hypothetical" but said such a president could impose the measure if it came at the recommendation of staff members who had identified a genuine national security problem. In contrast, he said, Trump's travel ban is an "easy case" because it came after multiagency review and on the advice of Cabinet officials.

The solicitor general conceded that if Cabinet officials knew the president was ordering a ban based on religious animus, because he told them as much, they would be "duty bound" to resign or refuse to comply with his order to come up with a justification.

While there was discussion about Trump's statements as a candidate and as president, no justice specifically referred to his tweets on the subject, despite Katyal's attempt to get them to focus on last fall's retweets of inflammatory videos that stoked anti-Islam sentiment.

Justice Sonia Sotomayor was the most aggressive questioner of Francisco.

She told him that she doubted the president has "the authority to do more than Congress has already decided is adequate" under immigration law. She and Kagan also questioned Francisco closely about whether the ban discriminates against Muslims.

From the other side, Kennedy challenged Katyal about whether the ban would be unending. He said the policy's call for a report every six months "indicates there'll be a reassessment" from time to time.

"You want the president to say, 'I'm convinced that in six months we're going to have a safe world,'" Kennedy said, seeming unconvinced by Katyal's argument.

Kennedy's only question that seemed to favor the challengers came early in the arguments, when he asked Francisco if Trump's campaign statements should be considered in evaluating the administration's ban. Francisco told the justices that they shouldn't look at those statements.

Kennedy pressed on that point. Speaking of a hypothetical candidate for mayor, he asked if what was said during that candidate's campaign was irrelevant if on "day two" of his administration the new mayor acted on those statements.

[U.S. immigration: Data visualization of selected immigration statistics, U.S. border map]

Francisco held his ground, saying the presidential oath of office "marks a fundamental transformation."

With Katyal at the lectern, Justice Samuel Alito said it seemed wrong to call the travel policy a Muslim ban when it applies to just five of 50 mostly Muslim countries, 8 percent of the world's Muslim population and only one country -- Iran -- among the 10 largest with Muslim majorities. "Would a reasonable observer think this is a Muslim ban?" Alito asked.

Katyal rejected the analysis. "If I'm an employer and I have 10 African-Americans working for me and I only fire two of them" but retain the other eight, he said, "I don't think anyone can say that's not discrimination."

Francisco, for his part, rejected the suggestion that the proclamation was meant to ban Muslims from entering the country.

"This is not a so-called Muslim ban," he said. "If it were, it would be the most ineffective Muslim ban that one could possibly imagine." It excluded, he said, "the vast majority of the Muslim world."

Kennedy pressed Katyal about whether judges should second-guess a president's national security judgments. "That's for the courts to do, not the president?" he asked, skeptically.

Katyal responded that presidents ordinarily deserve substantial deference. But he said the travel ban was so extreme that the Supreme Court should step in.

Outside the court, opponents of the ban held signs that read "No Muslim Ban. Ever" and "Refugees Welcome." In another indication of heightened public interest, the court released an audio recording after arguments ended. The last time the court did that was for gay-marriage arguments in 2015.

The justices are looking at the third version of a policy that Trump introduced shortly after taking office. The first version caused immediate turmoil as travelers were stopped at airports and some were detained for hours. It was blocked by courts and withdrawn. Its replacement was allowed to take partial effect but expired in September.

The current version is indefinite and now applies to travelers from five countries with overwhelmingly Muslim populations -- Iran, Libya, Somalia, Syria and Yemen. It also affects two non-Muslim countries, blocking travelers from North Korea and some Venezuelan government officials and their families. A sixth majority-Muslim country, Chad, was removed from the list this month after improving "its identity-management and information sharing practices," Trump said in a proclamation.

The administration has argued that courts have no role to play because the president has broad powers over immigration and national security, and foreigners have no right to enter the country. Francisco also has said in written arguments that Trump's September proclamation laying out the current policy comports with immigration law and does not violate the Constitution because it does not single out Muslims.

The challengers have said Trump is flouting immigration law by trying to keep more than 150 million people, the vast majority of them Muslim, from entering the country. They also argue that his policy amounts to the Muslim ban that he called for as a candidate, violating the Constitution's prohibition against religious bias.

The case is Trump v. Hawaii, 17-965.

Information for this article was contributed by Mark Sherman and Jessica Gresko of The Associated Press; by Robert Barnes, Ann E. Marimow and Matt Zapotosky of The Washington Post; and by Adam Liptak and Michael D. Shear of The New York Times.

A Section on 04/26/2018