More than a year after President Trump issued a travel ban that set off the first legal controversy of his presidency, the Supreme Court is set to consider whether the chief executive has the power to bar most immigrants and travelers from five heavily Muslim countries.
The justices will hear arguments Wednesday from lawyers on both sides of a fight that dominated much of Trump’s first few months in office and had a major role in shaping public attitudes toward his presidency.
The outcome will determine whether the president, acting on his own, can bar foreign nationals from entering this country, or instead whether he will be slapped down for bias against Muslims. Preliminary indications from the justices suggest that Trump’s challengers face an uphill fight.
The eventual ruling also may give the first clues about how the high court is reacting to the tempestuous Trump presidency — and to the determined legal resistance in the lower courts.
During the tenures of Presidents George W. Bush and Obama, nearly four years went by before the high court weighed in on their uses of presidential power. For Bush, the “war on terror” provided the first, key test. For Obama, it was his healthcare law.
Both times, the court narrowly upheld the president’s initiatives, but with limits. Prisoners at the U.S. military base in Guantanamo Bay, Cuba, won the right to court hearings, and Republican states won the right not to expand their Medicaid coverage.
By contrast, the fight over the travel ban began a few days after Trump’s inauguration, when the White House issued a hastily drafted proclamation that critics said was an attempt to make good on his campaign promise to enact a “Muslim ban.” The order barred travelers from seven predominantly Muslim countries and caused chaos at airports and disruptions for thousands of tourists, students, family members and business travelers.
Judges on both the West Coast and East Coast reacted quickly and issued rulings that suspended the ban. Even though Trump’s lawyers have steadily revised his order — the third version is now at issue — lower court judges have blocked it.
The Supreme Court, however, has been more friendly to the White House. Last June, the justices upheld much of Trump’s second travel order, which was due to expire in the fall.
And in early December, the court granted an unusual appeal from Trump’s lawyers, setting aside several lower court orders and allowing the president’s third and permanent ban to take full effect.
That decision, taken behind closed doors and with only two registered dissents, suggested that a majority of the justices believed Trump’s action was lawful.
The current version of the order bars entry for most immigrants and travelers from Iran, Syria, Yemen, Libya, Somalia and North Korea, as well as officials from Venezuela. Earlier orders had included Chad and Sudan.
Washington lawyer Neal K. Katyal, who served as acting solicitor general under Obama, is leading the challenge, representing the state of Hawaii. He argues that Trump’s order is extraordinary and unwarranted.
Trump “seeks to impose a sweeping change to the immigration system, imposing a ban on the entry of 150 million aliens — the vast majority of them Muslim,” Katyal told the court in briefs filed in Trump vs. Hawaii.
Giving the president such “extravagant and unilateral authority” would mean the chief executive could pick and choose which countries may send visitors to this country, Katyal said. Congress specifically rejected such discrimination based on nationality in 1965, he noted.
By contrast, U.S. Solicitor General Noel J. Francisco said Trump’s order is a routine measure in line with law and tradition.
“The Constitution and acts of Congress both confer on the president broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the nation’s interest,” he wrote.
“Past presidents have routinely invoked that authority … to advance national security and foreign policy objectives.” He cited as examples President Carter’s order barring Iranians in the late 1970s and President Reagan’s order blocking Cubans in the mid-1980s.
The high court is being asked to rule on four questions — two substantive and two procedural.
First, Trump’s lawyers question whether anyone can go to court to challenge an executive order barring entry of a noncitizen. “Congress has never authorized judicial review” of executive decisions “to exclude aliens abroad,” Francisco said. These noncitizens “have no constitutional rights regarding entry,” he added.
Katyal disagrees, of course. The judiciary is not “powerless” to intervene when the president oversteps his legal authority and adopts an unconstitutional policy, he said.
The next question focuses on federal immigration law and what it authorizes. Trump’s lawyers say Congress gave the president broad authority to “suspend the entry” of “any class of aliens” whenever he sees fit and for as long as he “shall deem necessary.”
Katyal agrees that the law gives the president this power, but says the authority applies to temporary and emergency measures, not a permanent ban on immigrants from a particular country. He also says the president has failed to explain why the travel ban is needed.
Moreover, Katyal points to the section of immigration law adopted in 1965 that he says makes clear the president may not “single-handedly revive the national quota system” that Congress abolished.
The third question asks whether a ban targeted at Muslim countries violates the Constitution’s ban on an “establishment of religion.” Usually, the “establishment of religion” issue arises when local officials choose to hold prayers at public events or put religious symbols on public property.
In this case, Francisco says the travel ban is “religion neutral” because it singles out countries based, not on religion, but on their lack of strong security procedures.
Katyal says the “evidence is overwhelming that [the travel ban order] was issued for the unconstitutional purpose of excluding Muslims from the United States.”
Finally, Trump’s lawyers ask the court to decide whether the district judge’s order in Hawaii that blocked the travel ban nationwide was too broad. The administration hopes the court will rein in the increasingly common practice of district judges handing down nationwide orders based on a suit brought by a handful of plaintiffs.