Trump's Statements on Travel Ban Dominate Supreme Court Arguments

ALM Media
Updated

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A rally at the Supreme Court against the Trump administration's effort to ban immigration from 7 Muslim-majority countries. Credit: Diego M. Radzinschi/ ALM [/caption] President Donald Trump's campaign and post-election statements dominated arguments Wednesday as the U.S. Supreme Court wrestled with the president's power to impose a travel ban on foreign nationals from predominantly Muslim countries. The justices heard arguments in Trump v. Hawaii before a full courtroom that included some of their spouses as well as White House Counsel Donald McGahn and U.S. Sen. Orrin Hatch, R-Utah. During the fast-paced arguments, which ran a little more than one hour, the justices, with the exception of Justice Clarence Thomas, who remained silent, focused on the following three concerns:

* The extent of the president's power to issue the travel ban.

Justice Ruth Ginsburg told U.S. Solicitor General Noel Francisco that she found "worrisome" that the proclamation appears to conflict with Congress' responsibility for making immigration laws. She said that although the law allows the president to suspend the entry of certain aliens, that is only for a period until Congress agrees or disagrees. The travel ban is indefinite. Francisco told her that a time limit would be inconsistent with the immigration statute. Picking up on Ginsburg's concerns, Justice Sonia Sotomayor said, "What I see the president doing here is saying, 'I'm going to add more to what Congress said.' Where does the president get the authority to do more?" Francisco pointed to a section of the Immigration and Nationality Act that gives the president authority to supplement the vetting process. "We're talking about the minimum information necessary to determine admissibility," he said. But Hogan Lovells partner Neal Katyal, representing Hawaii, countered that the president can "supplement but he can't supplant" what is in the law. Trump is seeking to do more than any president has done in more than 100 years, Katyal argued. If the court accepts the government's view of the president's power, he will be taking an "iron wrecking ball" to the statute, said Katyal.

* What weight should be given to Trump's statements and tweets as evidence of discriminatory animus?

Several justices pressed Francisco about the presidential statements. Francisco said the statements were irrelevant and "out of bounds." Francisco insisted, "This is not a Muslim ban. If it were, it would be the most ineffective ban," because it does not include all predominantly Muslim nations. The Trump administration, in preparing the proclamation, Francisco said, "applied neutral criteria all across the world" to determine whether other nations were providing the information necessary for the United States to determine eligibility for entry into this country. "Most of the world," he said, "was fine."

Neal Katyal

Chief Justice John Roberts Jr. asked Katyal if there is a "statute of limitations" on the president's statements or is the effect to last throughout the administration's life or forever. Katyal said the court should apply the reasonable observer test, and he pointed to "three virulent" anti-Muslim videos that Trump retweeted after issuing the ban. "The president could have distanced himself [from his statements and tweets] but instead embraced them," Katyal said. He told Justice Samuel Alito Jr., who said the ban's text did not look like a Muslim ban to a reasonable observer, to look at all the circumstances. "If it were just a list [of countries] you would be right," said Katyal. "This is a ban that does fall almost exclusively on Muslims. We wouldn't be here if it weren't for [Trump's] statements."

* What about nationwide injunctions?

Justice Neil Gorsuch asked Katyal what the court should do about this "really new development" of judges issuing nationwide injunctions, as happened to the travel ban. Katyal stressed that the travel ban is an immigration case and immigration law must be uniform. "Getting into [nationwide injunctions] here doesn't make sense," he told Gorsuch. The Sept. 27 ban originally applied to eight countries: Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela. Chad was recently removed from the list and replaced by Sudan. The challengers have not appealed the ban’s application to North Korea and Venezuela.