The best way to sort out the tricky legal issues around Donald Trump’s travel ban might be through hypotheticals.
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The Trump administration argued forcefully in favor of the travel ban, with Solicitor General Noel Francisco emphasizing “this is not a so-called ‘Muslim ban'”.
“Essentially, we can talk about policy, we can talk about legislation, but at the end of the day it’s about treating humans like humans, tearing down racist systems and tearing down white supremacy, because it’s been embedded in our system for too long”, Maryam Abdul-Kareem, a protester and self-described advocate for Muslims and racial justice, told TMN. The latest version of the travel ban made its way to the Supreme Court at a “lightning quick” speed, Shapiro said, and likely moved much more quickly than it would have last fall, or when there was chaos in airports across the world after the first ban was put in place last January and February.
“You want the president to say, ‘I’m convinced that in six months we’re going to have a safe world, ‘” Kennedy said, seemingly rejecting Katyal’s argument.
Abed Ayoub, a policy director at the American-Arab Anti-Discrimination Committee who was in the courtroom when Francisco made the comment, said he wasn’t shocked by the hiccup.
“Let’s say in some future time a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency”, she said to Francisco, the government’s attorney. She asked if those statements wouldn’t be relevant and indicate animus. “Some judges have felt you shouldn’t look at them, that campaign statements are campaign statements”. “Would a reasonable observer think this is a Muslim ban?” The court has historically given great latitude to how the executive branch determines what constitutes a national security threat, he added. The last time was the gay marriage arguments in 2015.
She wondered what the courts were to do in a situation where the president ordered his Cabinet to reach a specific conclusion, where “they’ve been told what the outcome of their deliberations must be”.
Katyal countered that Trump continued to make Islamophobic statements as president – in particular, he retweeted anti-Muslim videos and once tweeted that he wanted an even stronger ban, one that wasn’t “politically correct”.
The challengers have argued the policy was motivated by Trump’s enmity toward Muslims, pressing that point in lower courts with some success by citing statements he made as a candidate and as president. But that issue was raised only obliquely from the bench when Justice Elena Kagan talked about a hypothetical president who campaigned on an anti-Semitic platform and then tried to ban visitors from Israel.
“This Constitution, he thinks it’s a toy to be played with and to be thrown away when he’s bored with its protections”, Awad said. On Wednesday, the conservative-majority Supreme Court seemed to lean toward keeping with that tradition. Whichever path the Court follows – the inability of Congress to surrender its constitutional obligations or the unconstitutional attempt to impose a nation-centered exclusion, Trump’s travel ban simply can not survive.
The current version of the travel ban, which could affect almost 150 million people, prevents entry for most immigrants and travelers from Iran, Syria, Yemen, Libya and Somalia.
Mr. Trump’s original order, issued a week after he took office, was a broad ban on entry from seven majority-Muslim countries identified by Congress and the Obama administration as posing a special danger in terms of travel. If the law is to be understood as Trump’s lawyers argue, then it stands for nothing at all and is an unconstitutional abdication of responsibility by the Congress – and the Supreme Court should say so. And the worrisome thing about this is that the president acts; Congress is the one responsible for making the laws about immigration. “What’s at stake here is the president’s ability to evade any legal outcome for his own public statements, including those broadcast on a global stage”.
Another pivotal justice, Anthony Kennedy, suggested the travel ban was more flexible than opponents contended, pointing to a provision in the most recent version that he said requires officials to revisit it every 180 days.
Trump has said the ban is needed to protect the United States from attacks by Islamic militants.
“That oath marks a fundamental transformation”, he said.
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In 1944, the court ruled that the internment of Japanese-Americans during World War II was constitutional.
