In weighing the constitutionality of President Donald Trump's travel ban in highly-anticipated oral arguments Wednesday morning, the Supreme Court Justices returned repeatedly to the question of whether Trump's executive order trampled on Congress' right to set immigration policy. We hope the Court makes the right decision - that the ban violates the U.S. Constitution's command against religious discrimination.
This case was originally filed in the federal District Court for the District of Hawai'i in February 2017, and at first concerned the litigation about the second travel ban.
But the order was imposed by a man who falsely claimed that thousands of Arabs cheered in New Jersey when the World Trade Center collapsed; who demanded "a total and complete shutdown of Muslims entering the United States"; who declared that "Islam hates us"; who floated notions of closing mosques and cataloguing Muslim Americans; and who frequently has told an apocryphal tale of fighting Muslims by dipping bullets in pigs' blood.
The Trump Administration says the policy is needed for security, but challengers say the ban really targets Muslims.
The hearing was the culmination of a 15-month battle over a policy that quickly became a hallmark of the Trump era. It was met with nation-wide protests and was eventually blocked by the courts.
The supreme court likely won't issue a ruling on the case for at least a couple of months, but on Wednesday, the justices peppered the lawyers on opposing sides with a series of hypothetical situations that distilled the gnarly debate into simple yes-or-no questions. But, he maintains, the travel ban is illegal and unconstitutional and the President can not operate as though he is above the law.
Chief Justice Roberts wanted to know whether Mr. Trump was forever disabled from issuing orders concerning immigration.
Wednesday's arguments were the first time the justices had considered any of the bans in their entirety. The So-called Version 3.0 in September was open-ended and changed the countries.
Immigration attorneys and visa applicants from countries covered have complained about the scarcity of waivers granted and the lack of transparency around a process intended for applicants with serious medical needs or significant personal and business ties to the United States.
However, in December, the Supreme Court ruled that the third ban could go into effect while legal challenges were being heard.
The result is an nearly complete cutoff of travellers from the named countries.
But the Washington, D.C., lawyer for Hawaii and the other challengers to the Trump order, Neal K. Katyal, asserted that the President has directly contracted what Congress had decreed and is attempting to seize unilateral power to take "a wrecking ball" to any immigration law at will.
Justice Ruth Bader Ginsburg to Francisco: "You mentioned 1182 (f)".
Justice Samuel Alito asked the question again, presenting a less detailed scenario in which "the threat of the infiltration of the United States by terrorists was so severe with respect to a particular country" that the measures passed by Congress are inadequate.
The travel ban is the first Trump policy to undergo a full-blown Supreme Court review.
"The exclusion of aliens is a political act", he said. "That's for the courts to do, not the president?"
While on the campaign trail, Trump advocated for a full Muslim ban.
"If you look at what was done, it does not look like a Muslim ban", he said.
The current version of the travel ban emerged from a "multi-agency review" and a recommendation from the president's Cabinet, he said. It included Iran, Yemen, Somalia, Libya, and Syria and added Chad, another predominantly Muslim country.
Francisco said that if that a President were told by members of his staff and his Cabinet that "there is honestly a national-security risk here and you have to act"-that is, act to keep all Israelis out of America-"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".
MR. KATYAL: Justice Alito, I think if it were just the list, I think we'd be right - you'd be right, although I'd point out that you, yourself, in the Stormans case said that it's a religious - it raises an inference of religious gerrymander, of "the burden imposed falls nearly exclusively on those with religious objections".