The US Supreme Court appeared closely divided Wednesday over whether President Donald Trump had the power to block travelers from six mostly Muslim countries, in the biggest legal test of the administration’s contentious travel ban.
Five of the nine justices appeared convinced that Trump had not overshot his authority over immigration matters in the most recent version of the ban, which the administration claims is justified by national security concerns.
Both Chief Justice John Roberts and Justice Anthony Kennedy — who often casts a swing vote — asked skeptical questions of those challenging the ban.
The court’s four liberal-leaning justices honed in on the policy’s focus on Muslim countries and Trump’s record of anti-Muslim statements during the 2016 election.
A series of lower court rulings last year highlighted those concerns and branded the measure unconstitutional, dealing what were then stunning setbacks to the new administration.
But the adjusted, so-called Version 3.0 of the travel ban issued in September that includes North Korea and Venezuela with six Muslim countries appeared to pass muster with most justices. A first measure was issued in January 2017.
“If you look at what was done, it does not look at all like a Muslim ban,” said Justice Samuel Alito.
– Campaign promise –
The hearing was the culmination of a 15-month battle over a policy that quickly became a hallmark of the Trump era.
It has triggered protests, including one outside the court that saw activists carrying signs that read “Proud American Muslim” and “No Bigotry, No Hate.”
Just one week into his presidency on January 27, 2017, Trump followed through with a campaign promise and announced a 90-day ban on travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Prepared in secret, the sudden order created chaos as hundreds of travelers were blocked at airports.
Tens of thousands of legal visas were canceled and protesters took to the streets saying the president was banning Muslims in violation of the constitution’s religious freedom protections.
Courts in several states found the measure was illegal, and did so again in March 2017 after the Trump administration slightly amended the original order, with Iraq dropped from the list.
A furious Trump bashed the courts and his own Justice Department, but was forced to recast the ban again.
Issued in September, the latest version was open-ended, dropped Sudan, and added Chad, North Korea and a selection of Venezuelan officials.
Rights groups said those changes were cosmetic to mask the anti-Muslim nature of the policy.
Lower courts accepted their arguments and again froze the ban. But the Trump administration appealed to the Supreme Court, which allowed the policy to go into effect in October ahead of the hearing.
The result is an almost complete cutoff of travelers from the named countries.
– Ban ‘within president’s powers’ –
Neal Katyal, the attorney representing Hawaii, where the first challenge to the latest ban arose, said Trump had exceeded his authority.
“It’s a power no president in 100 years has exercised,” Katyal told the justices.
Justice Sonia Sotomayor, from the court’s liberal wing, echoed the point.
“Where does the president get the authority to do more than what the Congress has set?” she asked.
Solicitor General Noel Francisco, representing the Trump administration, defended the ban as justified on national security grounds.
“The exclusion of aliens is a political act,” he said. “It does fall well within the power of the president,” he told the court.
Francisco argued that Trump’s attacks on Muslims during 2016 were statements of “a private citizen,” and not Trump as leader or policymaker.
“This is not a so-called Muslim ban… It’s an order based on a multi-agency review.”
Apparently signaling where he stood, Alito noted that the policy was hardly a blanket ban on Muslims, affecting just some eight percent of the world’s Muslim population.
Justice Elena Kagan asked Francisco to consider what it would be like if a president ordered a ban on Israeli travelers after making anti-Semitic statements.
“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 answered.
The court is expected to review the case over the next two months before ruling in late June.