WASHINGTON (CN) – Insisting that the so-called travel ban was the result of a rigorous, neutral review process, not anti-Muslim animus, a lawyer for the government urged the Supreme Court on Wednesday to uphold the executive order.
U.S. Solicitor General Noel Francisco said Congress gave the president broad authority to determine who can and cannot enter the country, and that the countries included in the order landed there because of their poor vetting procedures.
“It is an order that is based on a multiagency, worldwide review that applied neutral criteria all across the world and concluded, under those neutral criteria, most of the world was fine, but a small part of it failed to provide us with that minimum baseline of information, the minimum, not the ideal, the bare minimum – terrorism history, criminal history – that we need to protect the country,” Francisco said.
Though President Donald Trump did issue a call on the campaign trail for a ban on Muslims entering the United States, Francisco said such comments should not be considered because Trump was a private citizen when he made them, and because the order is the result of lengthy consultation among a group of government officials who have sworn to uphold the Constitution.
“This is not a so-called Muslim ban,” Francisco said. “If it were, it would be 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, including Iraq, Chad and Sudan.”
Arguing against the order, Hogan Lovells attorney Neal Katyal said Congress previously rejected a nationality-based ban like the one included in the latest version of Trump’s order. Allowing the order to stand would give Trump authority that no other president has ever claimed, Katyal argued.
“Our fundamental point to you, though, is that Congress is in the driver’s seat when it comes to immigration and that this executive order transgresses the limits that every president has done with this proclamation power since 1918,” Katyal said. “And to accept it here is to accept that the president can take an iron wrecking ball to the statute and pick and choose things that he doesn’t want for purposes of our immigration code. That can’t be the law of the United States.”
He also said the order violates the First Amendment because its effect falls disproportionally on Muslims seeking to enter the United States. Katyal emphasized that the White House has affirmed this observation in public statements since the inauguration, rather than distancing from Trump’s proposal.
White House Deputy Press Secretary Raj Shah even referenced the order specifically, Katyal told the court, when asked about several anti-Muslim posts Trump retweeted.
The high-profile arguments saw the justices vaulting from the finer points of statute to the broader constitutional questions the case presents.
Justice Anthony Kennedy seemed surprised by Francisco’s claim that statements made by a candidate during the campaign should be “out of bounds,” wondering if that would require the courts to turn a blind eye to every problematic statement a candidate makes.
“Suppose you have a local mayor, and, as a candidate, he makes hateful statements,” Kennedy said. “He’s elected, and on Day 2 he takes acts that are consistent with those hateful statements. Whatever he said in the campaign is irrelevant?”
Justice Elena Kagan had previously posed a similar hypothetical, wondering what would happen if a virulently anti-Semitic president banned all entry into the United States from Israel.
Others, including Chief Justice John Roberts, probed whether Trump’s comments during the campaign mean he is never allowed to take actions that have a disproportionate effect on foreign Muslims, no matter the justification.
“My question was whether or not the inhibition on the ability to enter one of the proclamations applies forever,” Roberts asked Katyal.
Katyal told Roberts that Trump could lift the discrimination cloud if he disclaimed his more controversial comments, but noted the White House didn’t take him up on the offer when Katyal said the same thing before the Ninth Circuit.
Still others, such as Justice Sonia Sotomayor, delved into just what authority Congress gave the president in the Immigration and Nationality Act, and under what circumstances the executive can unilaterally change immigration policy.
“But what I see the president doing here is saying I’m going to add more to the limits that Congress set and to what Congress said was enough,” Sotomayor said. “Where does a president get the authority to do more than Congress has already decided is adequate?”
Francisco said while Congress set up a specific system for vetting foreigners seeking visas, it also gave the president authority to supplement the system.
Roberts came at the question from the opposite side, asking Katyal if the Immigration and Nationality Act locks the president in a box that prevents him from responding to developing situations with new immigration policy.
“It seems to me a difficult argument to say that Congress was prescient enough to address any particular factual situation that might arise,” Roberts said.
Katyal said there are emergency situations in which the president can exercise broader discretion, but that this order did not come about in any such circumstance.
Wednesday’s arguments were over the third version of Trump’s order denying entry into the United States by certain people, including from several Muslim-majority countries.
The first version, which Trump issued on Jan. 27, 2017, blocked anyone from seven countries with Muslim majorities from coming into the United States. The order spurred mass confusion and protest and almost immediately drew a court challenge, with a federal court in Washington state enjoining it on Feb. 3.
The administration followed up with a second version of the order on March 6, this time blocking for 90 days the entry of certain people from six Muslim-majority countries. Like the first, the order included a call for an official review of countries’ vetting practices for people seeking visas, but the second version also allowed the government to remove countries from the list if they improved their procedures.
But the second version fared no better under judicial scrutiny, with federal courts in Hawaii and Maryland enjoining the law, and the Ninth and Fourth Circuits affirming. The Supreme Court agreed to hear both cases and stayed the injunctions, but the order expired before the justices ever heard arguments.
The current round of litigation erupted on Sept. 24, 2017, when Trump took a third swing at the order. This time, he barred all entry from only Iran, North Korea and Syria, with the exception of Iranians looking to enter the country on student visas.
Meanwhile, the order suspended immigrant visas from Chad, Libya and Yemen, while doing the same for Somalia, with additional requirements for people seeking nonimmigrant visas. The administration has since removed Chad from the list, citing its improvement of its vetting programs.
Finally, the order bars Venezuelan government officials and their family members from entering the United States. All told, the order now applies to five countries with Muslim majorities.
Hawaii joined a group of three people and the Muslim Association of Hawaii in challenging the new order in Hawaii federal court, claiming it violated the INA and the establishment clause of the First Amendment.
The court again enjoined the order and the Ninth Circuit affirmed, but both declined to touch the constitutional issues, instead resting their decisions in the INA. A Maryland federal court and the Fourth Circuit separately enjoined the order on constitutional grounds. Only the Hawaii case is at issue before the Supreme Court this morning.