The Supreme Court held its long-awaited arguments over President Donald Trump's third attempt at a travel ban Wednesday — signaling the difficult issues that the justices believe they are being asked to consider, but not how they are likely to rule.
The court appeared to be of two minds in the arguments, with the justices' questions showing clear concerns about weighing into presidential decisions related to national security, but also a willingness to probe at when the possibility of a discriminatory motive for presidential actions would justify barring those decisions from taking effect.
Could a president who has expressed "virulent anti-Semitism" get his cabinet to make a recommendation that he ban everyone from Israel and then do so? ("A very tough hypothetical," the Trump administration lawyer acknowledged.)
On the other hand, if intelligence agencies said they were certain that a group of Syrians were planning on bringing chemical weapons into the US on a certain date, could the president exclude all Syrians from entering the US on that date? ("He could," the challengers' lawyer said.)
The hourlong arguments often veered toward such big questions because the underlying case — coming out of Trump's campaign and presidency — forced consideration of those extremes.
After campaigning in support of a "Muslim ban" and signing an executive order on his eighth day in office to implement a ban on travel from several Muslim-majority nations, Trump's order was challenged and halted in court. After a second executive order was partially halted by courts, federal agencies undertook a review of the underlying process. Following that review, Trump in September 2017 issued a third, more limited ban. It included restrictions on travel from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Chad has since been removed from the list.
Unlike the previous bans, the Supreme Court allowed the third attempt to go into effect while the cases challenging it were proceeding in court — the first sign of a more uphill battle faced by the challengers to the third iteration.
Wednesday's arguments were the first time the justices had considered any of the bans in their entirety.
When Solicitor General Noel Francisco took to the podium a little past 10 a.m. to defend the ban, he focused on the "worldwide multiagency review" and the cabinet-level consideration that preceded Trump's third effort as the reason why the Supreme Court should not block the effort.
Francisco turned again and again to that process — explaining that the travel limitations are an attempt to apply diplomatic pressure to nations that the federal government has concluded do not provide sufficient information to vet travelers from those countries.
Neal Katyal, the Hogan Lovells partner representing Hawaii, countered that Congress had rejected any nationality-based ban, undercutting Trump's authority under law to do so.
Acknowledging in response to a question from Chief Justice John Roberts that the president would have broad authority to issue even a nationality-based ban in "emerging, fast-moving" crisis situations, Katyal countered that this was not that, saying that Trump had been in office for 460 days and had not even proposed legislation to Congress to address any long-range policy concerns he had on the topic addressed by the various orders.
He also argued that Trump's continued statements — including on Twitter that he wanted a "tougher" ban that wasn't politically correct — showed that his original intent, expressed during the campaign, remained at issue and should be considered in deciding the challengers' second argument: whether the ban violates the Establishment Clause.
The court is expected to issue a decision by the end of June.