Key Justices Seem Skeptical of Challenge to Trump’s Travel Ban

WASHINGTON — A 15-month legal battle over President Donald Trump’s efforts to impose a ban on travel to the United States from several predominantly Muslim countries reached a final stage at the Supreme Court on Wednesday, with the court’s five-member conservative majority signaling it was ready to approve a revised version of the president’s plan.

The justices appeared ready to discount Trump’s campaign promises to impose what he repeatedly described as a “Muslim ban,” while giving him the benefit of the doubt traditionally afforded to presidents. Some expressed worry about second-guessing executive branch determinations about who should be allowed to enter the United States.

Immigrant rights groups had hoped that Chief Justice John G. Roberts Jr. or Justice Anthony M. Kennedy would join the court’s four-member liberal wing to oppose the ban as unconstitutionally discriminatory against Muslims. But their questioning was almost uniformly hostile to the ban’s opponents.

At one point in the oral arguments, Roberts asked whether Trump will forever be unable to address immigration in light of his campaign statements. “Is there a statute of limitations on that?” the chief justice asked.

Solicitor General Noel J. Francisco, representing the administration, said the latest travel ban, issued as a presidential proclamation in September, was not directed at Muslims.

“This is not a so-called Muslim ban,” he said. “If it were, it would be the most ineffective Muslim ban that one could possibly imagine.” It excluded, he said, “the vast majority of the Muslim world.”

Justice Samuel A. Alito Jr. added his own statistics.

“I think there are 50 predominantly Muslim countries in the world,” he said. “Five predominantly Muslim countries are on this list. The population of the predominantly Muslim countries on this list make up about 8 percent of the world’s Muslim population. If you looked at the 10 countries with the most Muslims, exactly one, Iran, would be on that list of the top 10.”

Neal K. Katyal, a lawyer for the challengers, rejected that analysis. “If I’m an employer and I have 10 African-Americans working for me and I only fire two of them” but retain the other eight, he said, “I don’t think anyone can say that’s not discrimination.”

Trump issued his first travel ban just a week after he took office, causing chaos at the nation’s airports and starting a cascade of lawsuits and appeals. The case before the court, Trump v. Hawaii, No. 17-965, concerns Trump’s third and most concerted effort to make good on his campaign promise to secure the nation’s borders. The court had considered aspects of an earlier version of the travel ban, but this was the first time the justices heard arguments on any of the challenges.

Challengers to the latest ban, issued as a presidential proclamation in September, said Trump’s campaign speeches and tweets about Muslims were a clear indication that the ban was aimed at a particular religious group and not justified by security concerns.

The administration said the latest order was the product of careful study by several agencies into the security and information-sharing practices of nations around the world. The president’s lawyers urged the courts to ignore Trump’s statements and Twitter posts, and to focus solely on the text of the proclamation and the process that produced it.

But several justices pressed Francisco to explain why the restrictions should not be seen as tainted by religious animus.

Justice Elena Kagan offered a hypothetical situation in which a future president who is “a vehement anti-Semite and says all kinds of denigrating comments about Jews” comes into office and bans entry to the United States from Israel.

“The question is, what are reasonable observers to think given this context?” Kagan asked, adding that she was asking about an “out-of-the-box kind of president.”

Francisco acknowledged that “this is a very tough hypothetical.” But he said such a proclamation could be lawful.

“If his Cabinet were to actually come to him and say, ‘Mr. President, there is honestly a national security risk here and you have to act,’ I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus,” Francisco said.

In addition to examining whether the travel ban was tainted by religious discrimination, the justices considered whether Trump had the legal authority to issue it.

Kennedy pressed Katyal about whether judges should second-guess a president’s national security judgments. “That’s for the courts to do, not the president?” he asked, skeptically.

Katyal responded that presidents ordinarily deserve substantial deference. But he said the travel ban was so extreme that the Supreme Court should step in.

Kennedy noted that the latest travel ban was longer and more detailed than proclamations issued by earlier presidents. He also appeared to speak approvingly of a part of the proclamation that called for periodic reports.

Roberts posed hypothetical questions to Katyal about the president’s power to thwart terrorist attacks.

“We have 100 percent solid information that on a particular day nationals from Syria are going to enter the United States with chemical and biological weapons,” the chief justice posited. “They could kill tens of thousands of Americans. In that situation, could the president ban the entry of Syrian nationals on that one day?”

Katyal said that presidents have the power to address emergencies but not to create sustained discrimination.

The travel ban is not the only one of the Trump administration’s immigration policies under challenge. Several federal judges, including one on Tuesday, have blocked its efforts to end a separate program that shields some unauthorized young adults from deportation. Those cases on the program, called Deferred Action for Childhood Arrivals, or DACA, are also likely to reach the Supreme Court. Trump’s first travel ban, issued in January 2017, was promptly blocked by courts around the nation. A second version, issued two months later, fared little better, though the Supreme Court allowed part of it to go into effect in June when it agreed to hear the Trump administration’s appeals from two appeals court losses. But the Supreme Court dismissed those appeals in October after the second ban expired.

The current ban initially restricted travel from eight nations — Iran, Libya, Syria, Yemen, Somalia, Chad, Venezuela and North Korea — six of which were predominantly Muslim. Chad was recently removed from the list.

The restrictions vary in their details, but, for the most part, citizens of the countries are prohibited from immigrating to the United States, and many are barred from working, studying or vacationing here. In December, in a sign that the Supreme Court may uphold the latest order, the court allowed it to go into effect as the case moved forward. The decision effectively overturned a compromise in place since June, when the court said travelers with connections to the United States could continue to travel here notwithstanding restrictions in an earlier version of the ban.

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented from the December ruling.

Hawaii, several individuals and a Muslim group challenged the latest ban’s limits on travel from the predominantly Muslim nations; they did not object to the portions concerning North Korea and Venezuela. They prevailed before a U.S. District Court in Hawaii and before a three-judge panel of the 9th U.S. Circuit Court of Appeals, in San Francisco.

The appeals court ruled that Trump had exceeded the authority that Congress had given him over immigration and had violated a part of the immigration laws barring discrimination in the issuance of visas.

In a separate decision that is not directly before the justices, the 4th U.S. Circuit Court of Appeals, in Richmond, Virginia, blocked the ban on different grounds, saying it violated the Constitution’s prohibition on religious discrimination. Toward the end of Wednesday’s argument, the questioning again turned to how much weight the court should assign to Trump’s campaign statements and how long they should haunt him.

Katyal said Trump and his advisers could easily have repudiated the earlier statements. “Instead they embraced them,” Katyal said.

The chief justice then asked whether Trump could immunize his order from constitutional challenge simply by disclaiming his earlier statements. “If tomorrow he issues a proclamation saying he’s disavowing all those statements,” the chief justice asked, “then the next day he can re-enter this proclamation?”

Katyal said yes.

In his rebuttal argument, Francisco pursued the point. Trump, he said, has already made clear that “he had no intention of imposing the Muslim ban.”

“He has made crystal clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country, and he has praised Islam,” Francisco said. “This proclamation is about what it says it’s about: foreign policy and national security.”