Support Skift’s Independent JournalismMake a Contribution Now
The U.S. Supreme Court will directly confront President Donald Trump’s travel ban for the first time with arguments being made Wednesday in a case that could redefine the president’s power to control the nation’s borders.
More than four months after letting the ban take full effect during the litigation, the justices will weigh opponents’ contentions that the policy unconstitutionally singles out Muslims while doing little to prevent terrorism.
The policy restricts entry by more than 150 million people from seven countries, five of them predominantly Muslim. It’s the third version of a ban that triggered chaos and protests at American airports when Trump signed the first executive order a week after taking office.
The argument will mark the biggest showdown yet for the president at the Supreme Court. The scheduled hour-long arguments will be the last of the court’s nine-month term, and a ruling is likely by the end of June.
Among the questions the court must examine is whether Trump’s call during his presidential campaign for “a total and complete shutdown of Muslims entering the United States” can be considered evidence that the travel ban is rooted in anti-Muslim bias. The justices will also review his post-inauguration tweets and retweets, which opponents say provide further evidence.
Trump’s legal team contends that federal immigration law gives the president broad discretion to decide who can enter the country.
“Congress has granted the president sweeping power to suspend or restrict entry of aliens abroad,” U.S. Solicitor General Noel Francisco said in court papers. “The president imposed restrictions that he determined are best suited to induce improved cooperation by foreign governments and to protect this nation in the interim.”
Hawaii is leading the challenge at the high court. That state’s lawyer, Neal Katyal, called the travel ban an “unprecedented assertion of power.”
Two federal appeals courts have ruled against Trump. In the Hawaii case, a San Francisco-based court said he exceeded the powers granted to the president by Congress. Although federal immigration law says the president can block a “class of aliens,” the appeals court said he still must show they would be a danger to the country.
The administration says the president has already given more of an explanation than the law requires. The current ban was put in place only after national security officials reviewed vetting procedures on a country-by-country basis.
The appeals court also said the policy violated a separate immigration provision that bars discrimination on the basis of nationality. The Trump administration says that provision applies only to visas, not to the entry limits imposed by the travel ban.
The policy bars or limits entry by people from Iran, Syria, Somalia, Libya and Yemen. The ban also blocks people from North Korea and a handful of Venezuelan government officials, though those aspects of the policy aren’t at issue at the high court.
The Department of Homeland Security can add or remove travel restrictions as conditions change. That happened earlier this month, when Trump removed Chad from the list of restricted countries.
Opponents say the travel ban unnecessarily separates families, at times by preventing relatives of American citizens from leaving dangerous countries.
The Supreme Court additionally will look into whether Trump is violating the Constitution by discriminating against Muslims, as a different appeals court found.
Katyal contended that the travel ban’s history and circumstances “would convince any reasonable observer that it is a policy intended to exclude Muslims.”
A key question will be whether the court looks at Trump’s campaign statements as evidence of his mindset. Francisco, the solicitor general, is urging the court not to consider campaign remarks.
The policy’s “tailored restrictions draw no religious distinctions and were adopted after a worldwide review of security risks by multiple agency heads whose motives have never been questioned,” Francisco argued.
People began lining up days in advance for one of the roughly 50 seats the court typically sets aside for members of the general public.
Underscoring the widespread interest in the case, the court will post an audio recording of the argument on its website by Wednesday afternoon. It’s the first time this term the court has released same-day audio. The court, which bars camera coverage of its proceedings, typically waits until the end of the week to post the audio.
The case is Trump v. Hawaii, 17-965.
©2018 Bloomberg L.P.