Washington, D.C. (Bloomberg) — The U.S. Supreme Court appeared poised to uphold President Donald Trump’s travel ban as two key justices used an argument session to aim skeptical questions at a lawyer challenging the policy.
Hearing the last case of its nine-month term Wednesday, the court took its first direct look at a policy that indefinitely bars more than 150 million people from entering the country. Opponents, led at the high court by Hawaii, say Trump overstepped his authority and was motivated by anti-Muslim animus.
Chief Justice John Roberts suggested he doubted that the policy was unconstitutionally tainted by Trump’s campaign call for a Muslim ban at the border. Roberts asked whether those types of comments would prevent a president from taking the advice of his military staff to launch an air strike against Syria.
“Does that mean he can’t because you would regard that as discrimination against a majority-Muslim country?” Roberts asked Hawaii’s lawyer, Neal Katyal.
Another pivotal justice, Anthony Kennedy, suggested he understood Katyal to be asking the court to second-guess the president on whether a national-security emergency warranted border restrictions.
“Your argument is that courts have the duty to review whether or not there is such a national exigency,” Kennedy said with a tone of incredulity. “That’s for the courts to do, not the president?”
The court is considering the third version of a ban that triggered chaos and protests at American airports when Trump signed the first executive order a week after taking office in January 2017. Although two federal appeals courts have ruled against Trump, the Supreme Court let the policy take full effect in December.
The travel policy bars or limits entry by people from Iran, Syria, Somalia, Libya and Yemen. It also blocks people from North Korea and a handful of Venezuelan government officials, though those aspects of the policy aren’t at issue at the high court. Trump removed Chad from the list of restricted countries earlier this month.
The high court’s decision, likely to come in the final days of June, promises to be a major pronouncement on the president’s control over the nation’s borders. It may also serve as a judgment on an unconventional presidency marked by ad-hoc policy decisions and pointed Twitter comments.
Wednesday’s session offered few reasons to expect that judgment to be anything but deferential. The toughest questions for U.S. Solicitor General Noel Francisco, Trump’s top Supreme Court advocate, came almost entirely from the court’s most liberal members.
One of them, Justice Sonia Sotomayor, said Congress had already enacted a visa waiver process that required heightened vetting in some cases. “Where does the president get the authority to do more than Congress has already decided is adequate?” she asked.
Justice Elena Kagan, another Democratic appointee, raised a hypothetical issue of a president who had made anti-Semitic remarks and whose administration found security reasons to recommend a ban on travel from Israel.
“This is an out-of-the-box kind of president in my hypothetical,” she said, drawing laughter from the courtroom. “We don’t have those, Your Honor,” Francisco quickly shot back before saying that he doubted that any national security reasons could justify a ban on such a close ally.
“The question is, what are reasonable observers to think given this context, in which this hypothetical president is making virulent anti-Semitic comments,” Kagan said.
But Justice Samuel Alito noted that Trump’s policy affects only a small percentage of the world’s Muslims.
“It does not look at all like a Muslim ban,” he said. “There are other justifications that jump out as to why these particular countries were put on the list.”
Katyal said the travel ban “does fall almost exclusively on Muslims.”
Kennedy, the court’s most frequent swing vote, asked questions of both sides. He asked Francisco about a hypothetical mayoral candidate who made “hateful statements” during his campaign and then acted on those comments on the second day of his administration.
“You would say whatever he said in the campaign is irrelevant?” Kennedy asked.
But Kennedy aimed his toughest questions at Katyal, the Hawaii lawyer. The justice 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. “That indicates there’ll be a reassessment and the president has continuing discretion,” Kennedy said.
And the Republican-appointed justice scoffed at Katyal’s argument that the policy lacks any clear end point. “You want the president to say, ‘I’m convinced that in six months we’re going to have a safe world,’” Kennedy said.
Francisco ended his argument by offering a defense of Trump’s motives, though the lawyer stumbled slightly over his words.
“He has made crystal clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country,” Francisco said. “And he has praised Islam as one of the great countries of the world.”
Underscoring the widespread interest in the case, the court posted an audio recording of the argument on its website Wednesday afternoon. It’s the first time this term the court has released same-day audio.
People began lining up days in advance for one of the roughly 50 seats the court typically sets aside for members of the general public.
The case is Trump v. Hawaii, 17-965.