In one of the most highly anticipated arguments before the U.S. Supreme Court this year, Justices are hearing arguments on Wednesday concerning Trump’s travel ban.
The ban was implemented soon after he took office, was re-authorized three times and was repeatedly struck down by federal courts as a discriminatory ban on predominantly Muslim countries. The case is now before the nation’s highest court and in the final day of arguments.
As Washington Examiner reports, the justices are arguing over whether: (1) disparaging comments Trump made on the campaign trail towards the Muslim community should be considered contextually, (2) if intelligence information not provided in the order, but understood to the president, could substantiate the order regardless of perceived discrimination, and (3) if the text of the executive order presumes discrimination based on religion.
Justice Elena Kagan posed a hypothetical about another candidate who criticized the Jewish community and, after being elected, banned travel from Israel:
The liberal justices peppered Solicitor General Noel Francisco with questions surrounding a hypothetical president suggested by Justice Elena Kagan.
Kagan posed the example of an anti-Semitic president who is elected and made comments on the campaign trail about Jewish people, which was a veiled reference to Trump’s comments about Muslims while campaigning for president in 2016.
Once assuming the presidency, under Kagan’s example, the president then asks staff to make recommendations so he can issue a proclamation banning people from Israel from coming to the U.S.
This is an “out-of-the-box type of president” in the hypothetical, Kagan said, before asking what a reasonable observer were to think about such an order.
Justice Kennedy similarly asked if Trump’s comments were relevant:
The justices also spent some time discussing the president’s statements on the campaign trail and on Twitter, which the challengers said demonstrated Trump’s ban was motivated by animus toward Muslims.
Legal experts had disagreed on whether the justices should consider Trump’s campaign statements in evaluating the legality of the ban.
Justice Anthony Kennedy raised the example of a local mayor who made statements on the campaign trail, then acted in a manner consistent with those statements on his or her second day in office.
Kennedy asked whether everything said prior to assuming office was “irrelevant?”
Francisco, referencing Trump’s statements on the campaign trail, said if the purpose of the executive order were a “Muslim ban,” then “it is the most ineffective Muslim ban.”
Other justices on the court instead looked to intelligence information and whether that would justify or otherwise warrant a travel ban:
Chief Justice John Roberts and Justice Samuel Alito seemed sympathetic to the government and suggested the president was acting in the interest of national security.
Roberts, at one point, raised an example under which intelligence agencies warn the president there is a “100 percent” chance a group of Syrian nationals will enter the U.S. with biological weapons.
The chief justice asked Neal Katyal, who argued on behalf of the state of Hawaii, whether the president could then ban Syrian nationals from coming to the country.
Justice Alito however analyzed the actual text of Trump’s executive order. His questions centered around whether a “reasonable observer,” looking strictly at the text of the order and not the campaign statements of the president, would view the measure as discriminatory. He then hinted as to how he may eventually vote on the decision, “If you look at what was done, it does not look like at all like a Muslim ban.”
Another question posed by Justice Sonia Sotomayor, is whether the executive branch could supersede authority vested to them by the legislative branch of government:
During one exchange, Justice Sonia Sotomayor asked Francisco, the government’s representative, what authority the president had to act when Congress had already taken steps to thoroughly vet foreign nationals wanting to come to the U.S. through the visa waiver program.
“Where does the president get the authority to do more than what Congress has said is adequate?” Sotomayor asked.
The Trump administration argues the Constitution and Congress have granted the president broad authority to place restrictions on the entry of immigrants to the U.S. when he believes it’s in the country’s interest.
The travel ban, the government says, was implemented only after a “worldwide review” by government agencies that examined whether foreign governments provide adequate information to the U.S. that allows for proper vetting of foreign nationals.
But the challengers in the case — which includes the state of Hawaii, a Muslim association, and several individuals — say the executive order seeks to ban more than 150 million immigrants based solely on nationality, which exceeds the authority delegated to Trump by Congress under federal immigration law.