WASHINGTON — Should campaign statements made by a presidential candidate be considered relevant to actions taken once that person is in office?
That was one of the key questions facing the Supreme Court on Wednesday, as justices heard oral arguments in the highly anticipated case concerning President Trump’s travel ban, which primarily affects citizens of Muslim-majority nations.
Appearing first in support of keeping the ban in place, Solicitor General Noel Francisco argued for treating campaigning and governing as unrelated.
Francisco, who maintained that the version of the travel ban currently in place — the third iteration — was issued in response to a “worldwide, multi-agency security review,” argued that a candidate’s comments made during a presidential campaign should be considered simply as “statements made by a private citizen,” and that taking the oath of office “marks a fundamental transformation.”
To test Francisco’s view, Justice Elena Kagan offered a hypothetical situation in which a “vehement anti-Semite” is elected president sometime in the future following a campaign in which he “provokes hatred.” Once in office, this hypothetical president “asks his staff to issue recommendations so that he can issue a proclamation of this kind,” Kagan posits. “They do, and what emerges is a proclamation banning people from Israel.”
In such a scenario, Kagan asked, would the president’s proclamation be subject to review by the court? Francisco replied that if this hypothetical president’s staff came to him and said there was a serious national security threat that warranted such a ban, it would be “valid regardless” of any anti-Semitism in that president’s “heart of hearts.”
Justice Sonia Sotomayor interjected, arguing that the hypothetical president’s anti-Semitic background does raise questions about the validity of the process that led his staff to come up with that policy, considering that those “conducting the review work for the president and have been given orders” with a known desired outcome.
In this situation, Sotomayor suggested, there may be the need for “an independent arbiter to see if the proclamation process is what it says it is.”
Francisco dismissed this hypothetical scenario, noting that in the U.S. today, “We don’t have something like this where the president says ‘I want to block Jews.’”
But the president’s challengers would disagree.
During his time before the bench, Neal Katyal, the attorney representing the state of Hawaii and other challengers to the ban, argued that not only did Trump explicitly call for a “complete and total shutdown of Muslims entering the United States” as a candidate, but once in office, he and his staff “have rekindled those views.”
Katyal pointed to the president’s own active Twitter feed as evidence of this, noting that “Trump retweeted three virulently anti-Muslim videos.” Before the review process that led to the current ban, which was promulgated last September, “the president tweeted that he wants a tougher, less politically correct ban,” Katyal noted.
The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!
— Donald J. Trump (@realDonaldTrump) September 15, 2017
“The president could have moved away” from his anti-Muslim campaign statements, said Katyal, but instead he “has embraced them.”
Given a final opportunity to address the court before the end of Wednesday’s hearing, Francisco suggested that President Trump has, in fact, disavowed his previous comments.
“On September 25, the president made crystal clear that he never intended to impose a Muslim ban,” Francisco said. He paraphrased Trump as saying “there are many, many Muslims who love this country,” and “he has praised Islam as one of the great countries [sic] of the world.”
Responding to Justices Neil Gorsuch and Samuel Alito, who observed that the text of the proclamation does not mention Islam, Katyal argued that “you need to look beyond the text of the ban.”
The argument, in what is slated to be the last major case before the court this term, drew intense interest and attracted more than 50 friend-of-the-court briefs. One was written by Khizr Khan, the Pakistani immigrant whose son, a U.S. Army captain, was killed serving in Iraq. The elder Khan became famous for his speech at the 2016 Democratic National Convention, denouncing Trump’s immigration policy.
“They are trying to find a legality somewhere to support their bigotry,” Khan told Yahoo News after the hearing, citing remarks by former New York City Mayor Rudy Giuliani, who said Trump called him shortly after his inauguration to ask for his help in legally enacting the Muslim ban he’d promised during the campaign.
“He wanted to ban all Muslims and he wanted to find a legal way of doing it, ” he said. “It’s so evident.”
As reporters, attorneys and members of the public filtered out of the courtroom, several people stopped to greet Khan, who stood quietly by himself near the steps to the courtroom, a Gold Star pin in his lapel.
“You’re an inspiration,” said one man, who identified himself as an immigration attorney and son of Pakistani immigrants, before asking to take a selfie. Kahn obliged, before walking outside and down the iconic front steps of the Supreme Court, where he addressed a group of protesters who chanted “No Muslim ban ever!”
“Thank God I haven’t had any personal interaction [with Trump], but … in the spirit of our son, Capt. Humayun Khan, I remain concerned for the sake and for the condition of others that are under threat, that feel afraid,” he said. “But we are hopeful that rule of law will prevail.”
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