The Supreme Court’s conservative justices sounded ready Wednesday to uphold President Donald Trump’s travel ban as a national security measure.
Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy said federal law gives the president, not the courts, the power to weigh threats from immigrants.
“Could the president ban the entry of Syrians” if he had evidence that some Syrians had chemical or biological weapons, Roberts asked a lawyer challenging Trump’s travel ban. The answer was obviously yes, the chief justice said, answering his own question.
Attorney Neal Katyal, representing the state of Hawaii, which has challenged the ban, said the law gives the president only temporary authority to exclude certain people, not a broad ban that would stay in place long term.
“Do you want the president to say: ‘In six months we will have a safe world?’” Kennedy said in a sarcastic rejoinder.
Two other members of the court’s conservative majority clearly seemed inclined to uphold Trump’s order.
Justice Samuel Alito rejected the argument that the order could be considered a “Muslim ban,” noting that the order 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 Neal 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.
Along with Justice Clarence Thomas, the conservatives appeared to have five solid votes to uphold Trump’s order.
If that is the outcome when the court eventually issues a decision — likely by the end of June — that would not be surprising. In December, the court granted an appeal from Trump’s lawyers and agreed to allow the current (third) version of Trump’s travel ban to go into full effect despite a lower-court order that had put it on hold.
That order from the court strongly suggested a majority of the justices were prepared to uphold the president’s measure.
The ruling in the case may give the first clues about how the high court is reacting to the tempestuous Trump presidency — and to the determined legal resistance in the lower courts.
During the tenures of Presidents George W. Bush and Obama, nearly four years went by before the high court weighed in on their uses of presidential power. For Bush, the “war on terror” provided the first, key test. For Obama, it was his health care law.
Both times, the court narrowly upheld the president’s initiatives, but with limits. Prisoners at the U.S. military base in Guantanamo Bay, Cuba, won the right to court hearings, and Republican states won the right not to expand their Medicaid coverage.
By contrast, the fight over the travel ban began a few days after Trump’s inauguration, when the White House issued a hastily drafted proclamation that critics said was an attempt to make good on his campaign promise to enact a “Muslim ban.” The order barred travelers from seven predominantly Muslim countries and caused chaos at airports and disruptions for thousands of tourists, students, family members and business travelers.
Judges on both the West Coast and East Coast reacted quickly and issued rulings that suspended the ban. Even though Trump’s lawyers have steadily revised his order — the third version is now at issue — lower court judges have blocked it.
The Supreme Court, however, has been more friendly to the White House. Last June, the justices upheld much of Trump’s second travel order, which was due to expire in the fall.
The current version of the order bars entry for most immigrants and travelers from Iran, Syria, Yemen, Libya, Somalia and North Korea, as well as officials from Venezuela. Earlier orders had included Chad and Sudan.
Katyal, who served as acting solicitor general under Obama, is leading the challenge. He argues that Trump’s order is extraordinary and unwarranted.
Trump “seeks to impose a sweeping change to the immigration system, imposing a ban on the entry of 150 million aliens — the vast majority of them Muslim,” Katyal told the court in briefs filed in Trump vs. Hawaii.
Giving the president such “extravagant and unilateral authority” would mean the chief executive could pick and choose which countries may send visitors to this country, Katyal said. Congress specifically rejected such discrimination based on nationality in 1965, he noted.
By contrast, U.S. Solicitor General Noel J. Francisco said Trump’s order is a routine measure in line with law and tradition.
“The Constitution and acts of Congress both confer on the president broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the nation’s interest,” he wrote.
“Past presidents have routinely invoked that authority … to advance national security and foreign policy objectives.” He cited as examples President Carter’s order barring Iranians in the late 1970s and President Reagan’s order blocking Cubans in the mid-1980s.
The high court is being asked to rule on four questions — two substantive and two procedural.
First, Trump’s lawyers question whether anyone can go to court to challenge an executive order barring entry of a noncitizen. “Congress has never authorized judicial review” of executive decisions “to exclude aliens abroad,” Francisco said. These noncitizens “have no constitutional rights regarding entry,” he added.
Katyal disagrees, of course. The judiciary is not “powerless” to intervene when the president oversteps his legal authority and adopts an unconstitutional policy, he said.
The next question focuses on federal immigration law and what it authorizes. Trump’s lawyers say Congress gave the president broad authority to “suspend the entry” of “any class of aliens” whenever he sees fit and for as long as he “shall deem necessary.”
Katyal agrees that the law gives the president this power, but says the authority applies to temporary and emergency measures, not a permanent ban on immigrants from a particular country. He also says the president has failed to explain why the travel ban is needed.
Moreover, Katyal points to the section of immigration law adopted in 1965 that he says makes clear the president may not “single-handedly revive the national quota system” that Congress abolished.
The third question asks whether a ban targeted at Muslim countries violates the Constitution’s ban on an “establishment of religion.” Usually, the “establishment of religion” issue arises when local officials choose to hold prayers at public events or put religious symbols on public property.
In this case, Francisco says the travel ban is “religion neutral” because it singles out countries based, not on religion, but on their lack of strong security procedures.
Katyal says the “evidence is overwhelming that (the travel ban order) was issued for the unconstitutional purpose of excluding Muslims from the United States.”
Finally, Trump’s lawyers ask the court to decide whether the district judge’s order in Hawaii that blocked the travel ban nationwide was too broad. The administration hopes the court will rein in the increasingly common practice of district judges handing down nationwide orders based on a suit brought by a handful of plaintiffs.
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