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?"