A closely divided Supreme Court wrestled Wednesday with a case challenging the legality of President Trump’s travel ban, which restricts travel to the U.S. for foreign nationals from five Muslim majority countries.
The justices gathered on the last argument day to consider one of the most high-profile and highly anticipated cases before the court this term. At issue in the case is whether the president exceeded his authority under federal immigration law and whether the ban violated the Establishment Clause of the Constitution.
The case marks the first time one of the Trump administration’s policies is being reviewed by the Supreme Court. It drew significant attention not only from legal minds and academics, but also from lawmakers and celebrities who attended the argument, including Sens. Orrin Hatch, R-Utah, and Mazie Hirono, D-Hawaii, White House counsel Don McGahn, and “Hamilton” creator Lin-Manuel Miranda.
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 made derogatory 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 and issues 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.
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 “vituperative, hateful” statements as a candidate, then acted in a manner consistent with those statements on his or her second day in office.
“Whatever he said in the campaign is irrelevant?” Kennedy asked.
Francisco said that if the purpose of the executive order was to be a “so-called Muslim ban,” then “it is the most ineffective Muslim ban that one could possibly imagine, since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders.”
“This order is what it purports to be and what its process and substance confirms that it is,” Francisco said.
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.
Alito, meanwhile, honed in on the actual text of the executive order and asked whether, without examining campaign statements, a “reasonable observer” would view the measure as a “Muslim ban?”
“If you look at what was done, it does not look like at all like a Muslim ban,” he said. “There are other justifications that jump out as to why these particular countries were put on the list. So it seems to me the list creates a strong inference that this was not done for that invidious purpose.”
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 origins of the travel executive order can be traced back to the campaign trail, when the president issued a formal statement calling for a “total and complete shutdown of Muslims entering the United States.”
Since assuming the presidency, Trump has rolled out three travel proclamations, and the third iteration issued in September was before the justices.
That ban, which was blocked from taking effect by lower courts, places travel restrictions to the U.S. on foreign nationals from seven countries, six of which have majority-Muslim populations.
The White House dropped Chad, an eighth, from the initial list this month, leaving Iran, Libya, Somalia, Syria, Yemen, North Korea, and some Venezuelan officials affected.
The Supreme Court handed the Trump administration a victory in December when it allowed the ban to take effect. Sotomayor and Justice Ruth Bader Ginsburg dissented. In January, the high court announced it would hear the case.
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.
The challengers also claim the ban discriminates on the basis of religion and cite Trump’s campaign statements and retweets of anti-Muslim videos last year as evidence he acted out of animus toward Islam.
Ahead of the argument, Attorney General Jeff Sessions defended the executive order, saying it was the result of an extensive review after which Trump decided the measure “is critical to protecting the American people.”
“President Trump has been steadfast in his commitment to the safety and security of all Americans,” Sessions said in a statement. “The Constitution and acts of Congress confer on the president broad discretion and authority to protect the United States from all foreign and domestic threats.”
The case attracted a wide swath of friend-of-the-court briefs ranging from law enforcement groups to universities and the business community.
