During intense arguments at the Supreme Court on Wednesday, the justices, by a narrow margin, seemed to be leaning toward upholding the third and current version of the Trump travel ban.
Justice Anthony Kennedy, who is often the deciding vote in closely contested cases, for example, made repeated comments suggesting that the court does not usually second-guess a president's national security decisions — even in the context of an immigration law that bans discrimination based on nationality.
If the court does rule in favor of the government — a decision is expected in June — it would be a big win for one of the pillars of President Trump's politics. It's an issue that animates the bases of both parties, appealing to the grievance politics of Trump's supporters and outraging the moral sensibilities of the left. Between the travel ban and the proposed wall along the U.S.-Mexico border, that idea of exclusion is fueling the resistance to Trump and firing up liberals for this year's midterms.
In court Wednesday, faced with the challengers' assertion that the travel ban is indefinite and perpetual, Kennedy replied caustically, so you want the president to say he is "convinced that in six months, we're going to have a safe world?"
Justice Stephen Breyer challenged Solicitor General Noel Francisco's assertion that the current process still allows significant numbers of people to enter the U.S. from these countries. How many? asked Breyer. Roughly 400, replied Francisco.
"That's 400 out of 150 million," Breyer responded, exasperated.
Later, lawyer Neal Katyal, representing those challenging the ban, pointed out that the current process continues to exclude many who have valid reasons to go to the U.S., like a 10-year-old girl who cannot move and wants to come to the U.S. for medical treatment.
Perhaps the most difficult question the government faced came from Justice Elena Kagan. She presented this hypothetical: Imagine that a "vehement anti-Semite" who says "all kinds of denigrating things about Jews and provokes a lot of resentment and hatred" is elected president.
That president issues an order that "dots the i's and crosses the t's" in terms of process but is a proclamation that says no person may be permitted from Israel.
Francisco replied that if the Cabinet determined there was a national security risk, "the president would be allowed to follow that advice even if in his private heart of hearts, he also harbored animus."
But, he pointed out, that hypothetical isn't the the case here.
Kagan slyly responded: Let's just say this is an "out-of-the-box president."
That prompted outright laughter in the courtroom.
Francisco held firm, saying that if the Cabinet agrees that there is a national security risk, the court would have to uphold the order.
Kagan contended that it's not what is in the president's heart of hearts, but what a reasonable observer would interpret.
With Donald Trump's campaign statements about Muslims clearly in the background, Kennedy seemed concerned about that point and presented a different hypothetical: Suppose a mayor is elected after a long campaign of "hateful statements" and then on Day 2 of his term, he takes "acts that are consistent with those statements."
Is everything he said during the campaign "irrelevant"? Kennedy asked.
Yes, replied Francisco.
Francisco added that the Trump travel ban is not a Muslim ban because if it were, "it would be the most ineffective Muslim ban that one could possibly imagine" since most of the approximately 50 majority Muslim countries are not included in the ban.
Katyal said he agreed that campaign statements may not be decisive. The problem here, he said, is that Trump and his staff, once in office, rekindled campaign statements calling for a Muslim ban.
After the third version of the ban, the president retweeted three virulent anti-Muslim videos, Katyal observed.
But, as the arguments came to a close, Francisco said the president made it "crystal clear on Sept. 25 that he had no intention of imposing the Muslim ban. He has made it crystal clear that Muslims in this country are great Americans ... and he has praised Islam as one of the great countries of the world."
How we got here
The Trump administration's travel ban poses enormous questions involving the structure of the American government and the values of the country.
At issue is the third version of the ban, which Trump has complained is a "watered-down" version. The court allowed it to go into effect while the case was litigated, but the lower courts have ruled that all three versions either violate federal law or are unconstitutional.
Like the earlier two bans, Version 3.0 bars almost all travelers from five mainly Muslim countries, and it adds a ban on travelers from North Korea and government officials from Venezuela.
The questions in the case are the stuff of history:
- Can the courts even review a presidential order on immigration that invokes national security?
- Did the president violate the immigration law's command against discrimination based on nationality?
- And does the executive order violate the Constitution's ban on religious discrimination?
The travel ban argument is the last of the term. And the importance of the argument is not lost on the court. For the first time since the same-sex-marriage arguments in 2015, the court allowed same-day distribution of the session's audio. Nonetheless, people started lining up at 7 a.m. Sunday in hopes of snagging a seat Wednesday.
The court itself is under extreme pressure. There are only about two months left in the term and an unusually large number of cases yet to be decided.
Moreover, one of the justices is playing hurt. Justice Sonia Sotomayor is continuing to work despite extreme pain from a broken shoulder. She is expected to undergo shoulder-replacement surgery some time next week, after all arguments for the term are completed.
In coming to a decision, the court will be examining not just the briefs filed by the government and those challenging the ban, but also 71 friend-of the-court briefs. Fifty-four of those were filed by groups siding with the challengers, among them a brief filed by the U.S. Conference of Catholic Bishops and several filed by an astonishing array of former national security experts who have served in Republican and Democratic administrations alike as well as more than two dozen retired top generals and admirals.
In several friend-of-the-court briefs, they argue that the travel ban not only violates American law but also has harmed national security.
"It actually made us less safe," said Gen. Michael Hayden in an interview with NPR. He is one of five former CIA directors who signed on to briefs opposing the travel ban.
RACHEL MARTIN, HOST:
The Trump administration travel ban finally reaches the U.S. Supreme Court today. At issue - big questions involving the structure of American government and the core of American values. The court is considering the third version of the president's ban. All have been struck down by the lower courts. The third ban, which the president has complained is a, quote, "watered-down version," was allowed to go into effect by the Supreme Court while the case was litigated.
STEVE INSKEEP, HOST:
Version three bars almost all travelers from five largely Muslim countries, and it adds a ban on travelers from North Korea and on government officials from Venezuela. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The questions in today's case are the stuff of history. Can the courts even review a presidential order on immigration that invokes national security? Did the president violate the immigration law's command against discrimination based on nationality? And does the executive order violate the Constitution's ban on religious discrimination? Lawyer Neal Katyal will represent those challenging the ban.
NEAL KATYAL: It's unconstitutional. It's unnecessary. And most of all, it's un-American.
TOTENBERG: Before he can make that case, he'll have to deal with the government's first argument - that foreign nationals outside the U.S. have no constitutional rights, no right to litigate in U.S. courts and that the courts have no power to review the president's ban. Katyal talked to NPR on condition he was confining his remarks to the case record. To articulate the government's contrary arguments, we turn to John Malcolm of the conservative Heritage Foundation.
JOHN MALCOLM: The Supreme Court has said on a number of occasions that when it comes to national security, so long as the executive comes up with a facially legitimate bona fide reason to exercise that national security prerogative by keeping certain people out of our country, we don't really need more than that.
TOTENBERG: In short, as long as the government gives the reasons for its ban, the courts are not to look behind those reasons to see if there is evidence to justify them.
MALCOLM: The president gets daily classified briefings, judges do not.
TOTENBERG: Lawyer Katyal notes that the Constitution gives exclusive power over immigration to the Congress and that Congress in 1965 banned discrimination in immigration based on nationality. The government counters that the president's order doesn't discriminate on the basis of either nationality or religion, but that argument runs up against repeated statements and tweets candidate Trump made during his presidential campaign.
(SOUNDBITE OF ARCHIVED RECORDING)
PRESIDENT DONALD TRUMP: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.
TOTENBERG: Trump, once president, stopped using such categorical language, while at the same time drawing a connection between the ban and his campaign statements. In February last year, for instance, he castigated a federal judge for blocking the first version of the travel ban declaring, that he would not back down.
(SOUNDBITE OF ARCHIVED RECORDING)
TRUMP: I keep my campaign promises.
TOTENBERG: The Heritage Foundation's Malcolm defends the president while acknowledging his shortcomings.
MALCOLM: The president has intemperate moments, but he has said that what we are targeting are not Muslims but jihadists. And there are about 50 or 51 majority-Muslim nations. But we are targeting countries that are points of vulnerability either because they lack the capacity or they fail to cooperate with us or they are safe havens of terrorism.
TOTENBERG: Making the contrary argument, however, are not just those directly challenging the travel ban but an astounding group of former national security experts who've served in Republican and Democratic administrations alike, as well as more than two dozen retired top generals and admirals. In several friend-of-the-court briefs, they argue that the travel ban not only violates American law, but it has harmed national security.
MICHAEL HAYDEN: It actually made us less safe.
TOTENBERG: General Michael Hayden served as director of the National Security Agency and then CIA director from 1999 to 2009. Hayden notes, for instance, that since the Trump ban, he's gotten calls from CIA officers still in government telling him the ban was making it far more difficult to recruit so-called assets and spies in the targeted countries, locations that are essential to the fight against ISIS and radical Islam.
HAYDEN: Just think of the impact of a pronouncement from the American government that people from that country where you've just recruited are never allowed or at least not allowed for the foreseeable future to enter this country. You have taken off the board the last sanctuary that the case officer uses to help recruit someone.
TOTENBERG: The national security experts who filed briefs opposing the ban note that no individual from any of the banned countries has committed a terrorist act on U.S. soil. Oddly, says General Hayden, the U.S. has often had more trouble with Belgium in reporting on jihadis seeking entry to the U.S. Joining Hayden and signing a series of briefs opposing the travel ban are more than 55 former CIA and deputy CIA directors, counter-terrorism chiefs, top diplomats with long records of service in the Middle East, secretaries of state and even the Republican chairman of the 9/11 Commission. They support the challengers' argument that the president has exceeded his authority in enacting the ban. Again, Neal Katyal.
KATYAL: Our founders put Congress in the driver's seat, the exclusive driver's seat, in Article 1 of our Constitution for a reason.
TOTENBERG: Angry about King George's abuse of his immigration powers, Katyal said, the founders decided on a different approach.
KATYAL: These decisions are too important to be left to the decision-making of one man.
TOTENBERG: But The Heritage Foundation's Malcolm counters that Congress has given up some of that power.
MALCOLM: Congress has explicitly, by statute, given the president the authority to exclude any aliens or class of aliens when he believes that not doing so would be detrimental to the interests of the United States.
TOTENBERG: Katyal replies that that doesn't give the president the power to override the law's ban on discrimination based on nationality. He quotes the late Justice Antonin Scalia in addressing which branch of government can do what. In a 1988 dissent, Scalia wrote that threats to the Constitution's separation of powers usually come disguised in sheep's clothing, but this wolf, said the justice, comes as a wolf. And so it is in this case, says Katyal.
KATYAL: When you read what the president's executive order is and you read his statements, you don't have to go very far to understand what they are. They are wolves coming as wolves.
TOTENBERG: A decision in the travel ban case is expected in late June. Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF GOLD PANDA'S "ENOSHIMA") Transcript provided by NPR, Copyright NPR.