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Supreme Court appears split on Trump’s travel ban

The travel ban set to go before the Supreme Court is a significantly scaled-back version of the one President Donald Trump signed a week into his presidency. | J. Scott Applewhite/AP Photo

Frequent swing Justice Anthony Kennedy seemed to struggle with aspects of the case.

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The Supreme Court seemed divided Wednesday on whether President Donald Trump’s controversial travel ban violates federal law or the Constitution, nearly 15 months after the policy’s first iteration kicked in and sparked angry protests at international airports across America,

The session offered no clear indication of how the court will rule. Frequent swing Justice Anthony Kennedy seemed to struggle with aspects of the case. He expressed concerns about second-guessing the president’s response to national security threats but also seemed wary of declaring that a president’s statements on the campaign trail can’t be used to assess his actions.

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The directive that went before the justices Wednesday is a version of the one that Trump signed a week into his presidency, triggering outrage over what critics decried as the “Muslim ban” Trump repeatedly promised during his 2016 campaign.

The policy — which the Trump administration says is critical for national security, but critics say discriminates on religious grounds — initially cut off virtually all visits to the U.S. by citizens of seven majority-Muslim countries. The restrictions were subsequently scaled back due to a series of setbacks in the courts, as well as pressure from Congress, the military and U.S. allies.

A central question at Wednesday’s arguments was how willing the justices were to engage in a discussion about Trump’s motives when crafting the policy and how his campaign-trail rhetoric factors into the legality of his policies.

Defending Trump’s policy, Solicitor General Noel Francisco told the justices that any comments a president makes before taking office should be disregarded because he hasn’t yet taken the oath of office.

“Those statements should be out of bounds,” Francisco insisted.

“What he said in the campaign is irrelevant?” Kennedy asked skeptically.

Most of the Republican-appointed justices seemed inclined to allow Trump’s order to stand. The Democratic appointees appeared to be divided into two camps, with Justices Stephen Breyer and Elena Kagan seeming to seek some kind of middle ground, while Justices Ruth Bader Ginsburg and Sonia Sotomayor appeared more convinced that Trump’s order went too far.

Kagan questioned Francisco about a hypothetical president who makes openly anti-Semitic remarks and whether that president would be able to bar people from Israel from entering the U.S.

“This is an out-of-the-box president in my hypothetical,” she said, to some chuckling in the usually staid courtroom. “And who knows what his heart of hearts is.”

Francisco argued the hypothetical president would still maintain the authority to deny entry to foreigners under existing immigration law.

Justice Sonia Sotomayor questioned whether Cabinet officials could perform an objective national security review under a president who had expressed racial animus.

The Cabinet would be “duty-bound to protect and defend the Constitution,” Francisco responded, adding that “here, however, you don’t have anything like that.”

The Trump administration says its restrictions will improve national security, partially by excluding potentially dangerous foreigners, although that argument has been undermined by a series of exemptions and limits placed on the initial ban. Now, Justice Department lawyers and Department of Homeland Security officials tend to focus more on how the travel restrictions encourage foreign governments to be more cooperative with U.S. efforts to vet potential visitors.

Critics have disputed that rationale.

“They have failed to demonstrate that the people from these countries [have] been involved in any type of a terrorist action within the U.S.,” said Azadeh Shahshahani, legal and advocacy director with the Atlanta-based immigrant rights group Project South.

A report released by the libertarian Cato Institute in September supports that assertion. The report found that the version of the travel ban Trump introduced last October would not have prevented the entry of any terrorists who arrived in the U.S. following the Sept. 11, 2001, attacks.

Still, plenty of court watchers remain skeptical the justices will rule against Trump’s broad-brush immigration restrictions, noting a long history of courts leaving such foreign policy and security decisions to other parts of the government. A provision in the 1952 Immigration and Nationality Act says when the president finds a foreigner or class of foreigners detrimental to U.S. interests, he can suspend entry “for such period as he shall deem necessary.”

“I think this is a silly policy,” South Texas College of Law professor Josh Blackman said. “But it’s not my job to make these sorts of decisions, and traditionally courts have deferred to the executive when dealing with matters of national security.”

“The courts are usually very circumspect when you have both statutory and constitutional authority on your side,” Blackman said.

The first version of Trump’s policy banned travel to the United States by nationals of seven majority Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order prompted widespread confusion, particularly over its application to green card holders from those countries. Courts quickly blocked the order’s impact on existing visa holders and eventually put the key part of the travel ban on hold worldwide.

Trump appealed that injunction to the 9th Circuit Court of Appeals, which refused to revive the policy. The administration chose to redraft the ban rather than appeal to the then-shorthanded Supreme Court.

A revised order issued in March 2017 deleted Iraq from the banned list, in part due to military and congressional protests, as well as complaints from Iraqi officials about targeting a country key to U.S. efforts to wipe out the Islamic State. Those who already held visas and people with green cards were explicitly exempt.

Federal judges in Hawaii and Maryland blocked the key parts of that version of the ban as well, accepting arguments that Trump exceeded his authority. Appeals courts upheld those rulings.

When the Trump administration took the issue to the Supreme Court, seeking an emergency order to implement the ban, the justices fashioned a compromise. The Trump administration won the right to implement the ban, but a six-member majority of the court forced officials to exempt foreigners with family ties to the U.S. or connections to business or educational institutions here.

In the June ruling, three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — said they would have allowed the entirety of Trump’s travel ban to take effect while the court considered the case.

Trump revised the ban for a third time last September, ordering tailored restrictions on eight countries. The president dropped one majority Muslim country, Sudan, from the earlier list and added another largely Muslim nation, Chad, along with Venezuela and North Korea. Some of the restrictions affected nearly all travel, while others were more limited. Critics said the addition of Venezuela and North Korea was a transparent effort to obscure the anti-Muslim thrust of the overall policy.

While lower courts ruled against the ban, the Supreme Court allowed the third version of the travel ban to go fully into effect in December pending the outcome of litigation. This time, the court split, 7-2. Democratic-appointed justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have left in place the earlier compromise exempting those with bona fide ties to the U.S.

There has since been one significant change to the so-called ban: Chad was taken off the restrictions list earlier this month. Officials said the country was providing greater cooperation with U.S. anti-terrorism efforts, but there were signs that the country’s inclusion was the result of bureaucratic foul-ups.

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