For much of President Donald Trump’s first year, lower court judges frustrated his efforts to impose a travel ban on certain Muslim-majority countries, condemning it as discrimination based on nationality or religion and stitching their opinions with his anti-Muslim rhetoric.
Now the Supreme Court appears ready to side with the administration, accepting its arguments that the new ban is vital to national security and a valid exercise of executive power.
Still, the justices left no doubt during a 67-minute hearing on Wednesday they are aware of Trump’s incendiary comments against Muslims from the 2016 presidential campaign. Among his campaign promises, as stated on his website: “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
After he was elected, Trump voiced similar, if not as robust, sentiment and denounced judges who ruled against the travel ban, belittling them on social media and questioning their legitimacy. He referred to US District Court Judge James Robart, of Washington state, as a “so-called judge” and deemed Robart’s February 2017 order temporarily blocking the travel ban “ridiculous.” Trump also said, “if something happens blame him and court system.”
The scathing back-and-forth that marked the earlier rounds of litigation were far from the staid Supreme Court setting on Wednesday. A majority of the justices suggested by their questions that their legal calculation for the revised proclamation (Trump’s third) could get beyond his rhetoric.
As much as the justices invoked hypotheticals featuring made-up out of control candidates, or as Justice Elena Kagan put it, “an out-of-the-box kind of president,” the justices also had in mind future real presidents and the power of the office.
Chief Justice John Roberts, among those most open to Trump’s case, asked dubiously whether campaign statements could be grounds “for the rest of the administration,” or effectively be subject to “a statute of limitations.”
More broadly, Roberts’ questions highlighted national security interests. When lawyer Neal Katyal, representing the state of Hawaii and other challengers, stood up at the lectern, Roberts immediately asked whether a president would be prevented from acting on intelligence that Syrian nationals sought to enter the United States with chemical and biological weapons.
Katyal, who argued that Trump was claiming limitless authority to exclude anyone he wished, tried to reject Roberts’ hypothetical, ultimately saying a president could act “to keep the country safe.” But Roberts’ national security concerns related to foreigners seeking visas were evident.
Even Kagan, who raised the most provocative hypothetical question about a vengeful anti-Semitic president who bars everyone from Israel, observed to Katyal that the proclamation “says there are important national security interests at stake.”
“And,” Kagan continued, “the question is how to do the kind of analysis that you want us to do without in some sense evaluating the adequacy of those national security interests, which for the most part we’ve said courts are not equipped to do.”
Predictions based on oral arguments can be perilous. The justices will likely vote in a scheduled Friday meeting, which is private, and the decision is not expected for about two months.
Much can happen behind the scenes during that period. But the Q&A on Wednesday suggested the high court majority was poised to give Trump the victory. The court previously signaled some endorsement when the justices allowed the travel ban to take effect in December, by a 7-2 vote. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
On Wednesday, Justice Anthony Kennedy, at the center of this ideologically divided bench and on whose vote the case could turn, sharply questioned Katyal and Solicitor General Noel Francisco, defending Trump’s proclamation now focused on Muslim-majority countries of Iran, Libya, Somalia, Syria, and Yemen, as well as North Korea and Venezuela.
Yet Kennedy leveled no broadside against the order and seemed most concerned that, when individual immigrants could demonstrate religious discrimination, an avenue existed for them to win an exemption from the order.
He prefaced that line of questioning by adapting Kagan’s query. “Suppose,” Kennedy said, “you have a local mayor and, as a candidate, he makes vituperative hateful statements, and he’s elected, and on day two, he takes acts that are consistent with those hateful statements. … Whatever he said in the campaign is irrelevant?”
“I would say yes,” Francisco answered, “because we do think that (the) oath (of office) marks a fundamental transformation.”
He added: “This is not a so-called Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.”
Kennedy continued, asking, “If you have that extreme hypothetical, would that present a Free Exercise or an Establishment Clause claim” under the First Amendment’s protection for religion.
“It could definitely present a free exercise clause challenge,” Francisco responded.
Kennedy observed that Trump would be required to review the order every 180 days, suggesting that provided a safeguard against abuses.
Katyal tried to emphasize that Trump’s unilateral move to restrict nationals from Muslim-majority countries had usurped congressional power over immigration, in a breach of the terms of the federal Immigration and Nationality Act.
“I just want to make very clear the consequences of (the Trump administration) position for the INA,” Katyal said, “is that the President can take a wrecking ball to the statute.”