Justices Cautious To Tread On Trump’s Power Over Travel Ban
Share us on: By Nicole Narea
Law360 (April 25, 2018, 4:37 PM EDT) -- The U.S. Supreme Court heard arguments Wednesday over the third version of President Donald Trump's travel ban, with the justices appearing skeptical of the state of Hawaii's assertion that the president overstepped his statutory immigration powers.
U.S. Solicitor General Noel Francisco asserted that the scope of the policy fell well within the president's broad authority under Section 212(f) of the Immigration and Nationality Act, also known as 1182(f) of the U.S. Code, which allows the president to "suspend the entry of all aliens or any class of aliens" for a period of time he deems necessary if he finds that entry would be "detrimental to the interests of the United States."
Justices John Roberts, Samuel Alito and Anthony Kennedy grilled Neal Katyal, counsel for the state of Hawaii, on how he thought the travel ban overstepped Congress’ intention in 1182(f). Katyal told the justices that, through the INA, Congress expressly rejected a nationality-based ban in favor of a system of vetting and creating incentives for countries that fail to cooperate. While he conceded that the president has the power under 1182(f) to suspend entry of a class of noncitizens in emergencies on a temporary basis, he argued that the ban was not "tailored to a crisis" and did not specify any end date.
"Congress rejected exactly what they're trying to propose here, which is a flat nationality ban," he responded. "[The] solution has always been from Congress not to have a flat ban but instead to have a fine-grained vetting system."
The latest ban, announced through a Sept. 24 proclamation, targeted eight countries — Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia — and suspended refugee admissions. Chad has since been dropped from the list of restricted countries after the administration found that it had improved its information-sharing practices related to vetting.
The high court had requested briefing on whether the case has standing, whether the travel ban is a lawful exercise of the president's authority, whether the nationwide injunction issued by the district court and affirmed by the Ninth Circuit was overbroad and whether the ban violates the establishment clause of the First Amendment, which prohibits the government from favoring certain religions over others.
Katyal argued that, based on the president's public statements, any "reasonable observer" would conclude that the travel ban is a de facto "Muslim ban" in violation of the establishment clause. He admitted that Hawaii could not have brought establishment clause claims if Trump had disavowed his statements about Muslims or never made them.
"If it were just the text of the order alone, it might raise eyebrows, for fit and other reasons that the briefs go into, but we wouldn't be here," he said. "You have to look to all the circumstances around it that are said, the publicly available ones."
Francisco urged the court not to take into consideration Trump's campaign statements, arguing that they were made while he was a private citizen before he had taken the fundamentally transformative oath of office and without the advice of his Cabinet. Even taking the public statements into consideration, however, Francisco said that the federal government had since found a national security rationale that sufficiently justified the ban.
Francisco argued that a multiagency worldwide review established neutral baselines of information needed to determine the admissibility of foreign nationals and found that seven countries fell below those standards. The ban was implemented as a means of pressuring those countries to comply with U.S. vetting processes and advance national security interests, an area of policy in which courts have historically deferred to the executive branch, he said.
Justice Elena Kagan presented Francisco with a hypothetical situation in which a virulently anti-Semitic president instructs his cabinet members to write a policy to exclude Jews. She asked if the government would say that courts could not review such a policy if Cabinet members could provide a national security rationale.
Francisco replied that a court would likely have to uphold the president's policy in light of national security concerns.
"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," he said.
Francisco also faced a tough line of questioning from Justice Stephen Breyer over the sparse 400-some waivers the government has granted to those targeted by the ban. Justice Breyer questioned the process by which waivers are granted — citing amicus briefs indicating that professors, students and individuals seeking medical treatment had all been denied waivers — and whether the government has adequately publicized the availability of waivers.
Francisco replied by saying that, while it is beneficial that waivers are available, the government is not legally obligated to provide them.
A ruling in the case is expected in June.
Francisco is the solicitor general, (attorney for the government)
1182(f)Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.