A divided Supreme Court gave President Trump’s immigration travel ban a better reception Wednesday than it’s received in lower courts over the past 15 months, raising the chances that it 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 it 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 raised concerns about its 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 the 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 majority-Muslim 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 ban 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 following month.
Trump’s second version, issued in March, dropped Iraq from the list of affected nations and exempted visa- and green card-holders. It fared no better, getting struck down last spring before the Supreme 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 it 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 the president’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 so-called Muslim ban,” he said. “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.”
On the question of religious discrimination, Katyal said Trump’s vow to ban Muslims during the campaign and his tweets as president colored his actions. If he disavowed those comments, Katyal said, the discrimination challenge would not apply.
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 that he sought to ban Muslims. Most of the judges who issued rulings said his statements as a candidate, president-elect and president are relevant.
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 anti-Muslim bias into an executive order or proclamation that, on its surface, is devoid of religious content.
Several judges argued that campaign promises should be off-limits, or at least dwarfed by government actions that are not overtly discriminatory.
The high court showdown was of such interest that Roberts agreed to release the audio recording of the morning’s oral argument later in the day, rather than at the end of the week. The last time the court did that was for the oral arguments on same-sex marriage in 2015.
Among those inside the courtroom Wednesday was White House counsel Don McGahn, seated next to former Supreme Court justice Thurgood Marshall’s widow, Cecilia. Also present: Lin-Manuel Miranda, creator and star of the Broadway hit Hamilton.