- President Donald Trump’s travel ban was argued before the Supreme Court on Wednesday.
- The justices will decide whether Trump has the authority to broadly restrict travel to the US and whether the ban violates the Constitution’s establishment clause.
- The justices are expected to issue a ruling in June.
President Donald Trump’s travel ban, one of the most controversial executive orders to come from his presidency so far, appears to have the backing of a majority of Supreme Court justices who heard oral arguments on Wednesday morning.
The court considered the third iteration of Trump’s ban, which he issued in September, after lower courts struck down each of Trump’s previous two versions.
During the arguments, two of the most closely watched justices — Chief Justice John Roberts and Justice Anthony Kennedy — appeared to amenable to the government’s arguments that Trump has the authority to impose travel restrictions due to national security concerns.
The third ban imposed restrictions on travelers coming to the United States from Syria, Iran, Yemen, Somalia, Libya, Chad, North Korea, and Venezuela. But the plaintiffs didn’t include North Korea and Venezuela in their challenge, and the Trump administration removed Chad from the list in recent weeks.
At issue are two main questions:
- whether Trump has the authority under federal immigration law to implement such travel restrictions, and
- whether the travel ban violates the Constitution’s establishment clause, which prohibits the government from favoring one religion over another.
The Supreme Court posted audio of the oral arguments on its website Wednesday afternoon, a rarity, because the case has such a high profile. The justices are expected to issue a ruling in June.
What the Trump administration is arguing
The Trump administration argued on Wednesday, as it did with the previous two travel bans, that Trump has “broad authority” to restrict travel to the US over national security and terrorism concerns.
“The proclamation reflects a foreign policy and national security judgment that falls well within the president’s power,” Solicitor General Neil Francisco, who was arguing on behalf of the Trump administration, told the justices.
Francisco also argued that the ban does not discriminate against Muslims, as it does not apply to “the vast majority of the Muslim world.”
Instead, Francisco argued, the travel ban only applied to countries that “failed to provide the minimum baseline of information needed to vet their nationals,” and exerted diplomatic pressure on those countries to improve their data collection practices.
The Trump administration also argued that the travel ban has precedent — previous presidents have issued executive orders restricting travel from certain countries during international conflicts or other national security crises.
The government cited decisions from Jimmy Carter, who restricted travel from Iran during the hostage crisis in 1980, and Ronald Reagan, who restricted travel from Cuba in 1985.
What the challengers are arguing
The challengers — which include the state of Hawaii, the Muslim Association of Hawaii, and two unidentified plaintiffs — have argued that Trump’s third version of the ban essentially does the same as the previous two: discriminates against Muslim travelers in an effort to fulfill Trump’s 2016 campaign proposal to bar Muslims from entering the country.
Plaintiffs have also cited not only the previous two travel bans but Trump’s 2016 campaign rhetoric and multiple tweets during his presidency that they see as evidence Trump has religious animosity toward Muslims.
Lower courts, including two federal appeals courts, have generally sided with the plaintiffs in ruling that Trump’s travel ban has been similar in its intention and implementation to the first two travel bans, which barred nationals of only several majority-Muslim countries from entering the US.
US District Judge Derrick Watson, for instance, wrote in an early opinion that Trump’s third travel ban would cause “irreparable harm” and violate federal immigration law were it to take effect.
He wrote that the ban “suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States.'” He added that the ban “plainly discriminates based on nationality.”
But one recurring question the challengers have faced — and are likely to face Wednesday — has been whether the plaintiffs adequately demonstrated to the courts that Trump had exceeded his lawful authority in introducing the ban.
The challengers concede that the Immigration and Nationality Act grants the president broad powers to restrict the entry of certain travelers, but they have argued that the Trump administration has “grossly” exceeded its authority by placing indefinite restrictions on a group of countries that comprises roughly 150 million people.