WASHINGTON — The Supreme Court’s conservative justices sounded ready Wednesday to uphold President Donald Trump’s travel ban, potentially giving the beleaguered White House a big legal victory after a series of defeats in the lower courts.
Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy portrayed the issue before the court as one of national security in which the chief executive, not the judicial branch, should be entrusted to weigh possible threats from foreign visitors.
“Could the president ban the entry of Syrian nationals” if he had evidence that some Syrians had chemical or biological weapons? Roberts asked a lawyer challenging Trump’s travel ban.
Even the lawyer for the challengers had to agree the answer was yes.
But attorney Neal Katyal, representing the state of Hawaii, said federal law gives the president only temporary authority to exclude certain people, not to impose a broad ban that would cover an entire nation and stay in place indefinitely.
The president should go to Congress if he wants a “flat ban” on new immigrants from certain nations, Katyal said.
At issue now is the third version of a travel ban. It bars the entry of most immigrants and travelers from Iran, Syria, Yemen, Somalia, Libya and North Korea as well as officials from Venezuela. Earlier versions included Chad, Sudan and Iraq.
Since Trump first issued his travel order, setting off widespread chaos at airports just a few days after his inauguration, the issue has strongly shaped public perceptions of the new administration. It has also led to a string of defeats in lower courts, where judges ruled that the measure exceeded Trump’s authority and, in some cases, said it reflected bias against Muslims.
The Supreme Court has provided a friendlier forum, however. The justices issued a ruling in June that allowed the second version of the travel ban to take partial effect. Then, in December, with only two dissents, they set aside lower-court rulings to allow the administration to put the third version into practice, a strong indicator of where the majority was headed.
Wednesday, along with Roberts and Kennedy, two other members of the court’s conservative wing clearly seemed inclined to uphold Trump’s order. Along with Justice Clarence Thomas, they would appear to provide five solid votes to provide the administration with a victory.
Justice Samuel A. Alito rejected the notion Trump’s order could be considered a “Muslim ban,” noting it does not apply to most of the largest Muslim nations.
“If you look at what was done, it does not look like a Muslim ban,” he said.
Justice Neil Gorsuch, Trump’s appointee, questioned whether the challengers had standing to sue in the first place. Foreigners overseas do not have rights in U.S. courts, he said. Plaintiffs who live in Hawaii sued, contending the travel ban was illegal, but “third parties can’t vindicate the rights of aliens,” Gorsuch said.
During the first half-hour of the argument, the court’s liberals, led by Justices Elena Kagan and Sonia Sotomayor, suggested Trump’s order reflected unconstitutional religious bias.
Several justices commented on Trump’s campaign statements and his tweets, asking if they gave evidence of anti-Muslim bias.
The president’s lawyer argued that campaign statements are a matter of free speech and not relevant in judging a president’s decisions in office.
In addition to resolving the fate of the travel order, the ruling in the case may give the first clues about how the Supreme Court is reacting to the tempestuous Trump presidency — and to the determined legal resistance in the lower courts.
The Supreme 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.
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.”
The third question asks whether a limitation 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.
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.