WASHINGTON—The Supreme Court appeared, at least from their remarks in a sharp back-and-forth oral argument on April 25, to split along partisan lines in weighing President Donald Trump’s latest “Muslim ban” executive order—GOP-named justices for it, the others against it—even as Trump’s Justice Department tried to deny it’s a Muslim ban at all.
Justices Anthony Kennedy and Neil Gorsuch, plus Chief Justice John Roberts, appeared to side with the Trump administration’s assertion that Congress gave presidents a lot of leeway to impose immigration restrictions. Justices Sonia Sotomayor and Elena Kagan were more dubious, saying Congress gave the president no such right. Sotomayor and Kagan handled most of the questioning.
The argument before the High Court is not the last word on the president’s pledge, during his 2016 campaign, to bar any Muslim from entering the U.S. He said they’re all terrorists. That may come when the justices hand down their ruling on this executive order, the third in a series Trump has issued.
Lower courts have tossed all three, including this one, on the grounds of unconstitutional prejudice. Trump’s Solicitor General, the government’s top lawyer, evaded the constitutional argument that Trump’s ban violates freedom of religion, when Justice Elena Kagan brought it up—even when she put it as a hypothetical question of an anti-Semitic president banning Israelis. Kagan is Jewish.
Solicitor General Noel Francisco eventually was forced to reply that if the Cabinet or other officials found good national security grounds for banning travelers from Israel, the president has authority under the Constitution and immigration laws to do so, regardless of the president’s personal views. He then quickly said that wouldn’t happen, as Israel is a key ally in battling terrorism.
Much of the case turned on how wide a president’s constitutional authority over immigration is. Francisco consistently stated Congress gave the president—indeed, the entire executive branch—wide leeway to bar people from the country.
“Congress looked at the situation and created a system to treat the very concern the president is expressing,” Justice Sotomayor retorted. It did so by establishing a rigorous system, including approvals by the Attorney General and the Secretary of State for individual visitors from “terrorist” countries, she told Francisco.
“So what I see the president doing here is saying ‘I’m going to add to the limits Congress set,’” Sotomayor added. “Right,” Francisco interjected. “Where does the president get the authority to do more than what Congress has already decided was adequate?” she asked.
“The basic answer is that [section] 1182f of immigration law gives the president the authority to impose restrictions in addition to those set forth in the Immigration and Naturalization Act,” he replied.
“The whole vetting [evaluation] system is essentially determined by the executive branch. It’s up to the executive branch to set it up. It’s up to the executive branch to maintain it. And it’s up to the executive branch to constantly improve it.”
Francisco uttered the words “Muslim ban” only once. He told Justice Kagan that since Trump’s ban affects only seven nations—two of which aren’t majority-Muslim—“it would be the most ineffective Muslim ban in history.”
Francisco also told Justice Kagan that Trump’s oath of office separates his presidential statements from his campaign oratory. He claimed that campaign oratory does not now matter. Francisco did not address Trump’s anti-Muslim comments once in the Oval office.
Neil Katyal, the former Obama administration solicitor general who argued for Hawaii and the 18 other states—including Minnesota, Illinois, and D.C.—challenging the Muslim ban, met the issue head on.
“The president and his advisers directly tied that policy to those [campaign] statements,” Katyal told Chief Justice Roberts. “That’s a constitutional claim” violating the First Amendment’s freedom of religion and ban on discrimination against people on the basis of their faith.
More than 80 organizations, individuals, or groups of organizations or individuals, filed friend-of-the-court briefs in the case, split roughly down the middle for and against Trump. Briefs backing Trump came from right-wing legal foundations, anti-immigrant groups, and a bevy of former Justice and Homeland Security Department officials.
Notable briefs against Trump came from constitutional lawyers, religious denominations, universities—including Chicago, Stanford, Harvard, Yale, and MIT—and one from nine unions: The Teamsters, the Auto Workers, the Teachers, the Service Employees, AFSCME, the Communications Workers, the National Education Association, the Farm Workers, and the Food and Commercial Workers.
Trump’s ban “sends a state-sponsored message that promotes anti-Muslim hostility, discrimination and stigma,” the nine said. “It has led to increased violence and discrimination against Muslims” and the ban “adversely affects mental and physical health” of Muslims already in the U.S. who worry about relatives and family members abroad—including those split away from their U.S. families and stranded overseas by Trump’s ban.
The unions also cited specific damage caused, with NEA saying it harms teaching and the environment in schools, and UAW noting it represents 40,000 TAs, RAs, and postdocs in U.S. universities, many of them Muslims. They find their travel and study opportunities banned by Trump’s order, the union said.
And UFCW says its members include Muslim food store and warehouse workers who, with their families, are harmed by Trump’s ban. “Many of those workers have experienced wrenching separation from their homelands due to war and famine,” UFCW added.
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