Supreme Court Hears Arguments On Trump Travel Ban 3.0

by Bamidele Ogunberu Posted on April 25th, 2018

Washington, D.C., USA: The Supreme Court, Wednesday, heard arguments on the third iteration of Trump travel ban. The court allowed it to go into effect while the case was litigated, but the lower courts have ruled that all three versions either violate federal law or are unconstitutional.

Like the earlier two bans, the third iteration, 3.0, bars almost all travelers from mainly Muslim countries, and it adds a ban on travelers from North Korea and government officials from Venezuela.

The questions in the case revolve around whether the courts can even review a presidential order on immigration that invokes national security, whether President Donald Trump violated the immigration law’s against discrimination based on nationality and whether the executive order violates the Constitution’s ban on religious discrimination.

At Wednesday’s argument, those challenging the ban are being represented by lawyer Neal Katyal, who has argued landmark cases in the Supreme Court both for and against executive power in the context of national security.

“It’s unconstitutional. It’s unnecessary. And most of all, it’s un-American,” he maintained.

The government’s first argument is that foreign nationals outside the U.S. have no constitutional rights and no right to litigate in U.S. courts and that the courts have no power to review the president’s ban.

Solicitor General Noel Francisco in his defense of the Trump policy argued that as long as it gives reasons for the ban, the courts are not to look beyond those reasons to see whether there is evidence to justify them.

But those challenging the ban, led by the state of Hawaii, note that the Constitution gives exclusive power over immigration to Congress and that in 1965, Congress banned discrimination in immigration based on nationality.

But in its brief, the Trump administration counters that Congress has, by statute, given up some of that power.

The government contends that the president’s order does not discriminate on the basis of either nationality or religion.

But that argument runs up against repeated statements and tweets Trump made during his presidential campaign.

At a 2015 rally, for example, Trump declared, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.”

Perhaps the most difficult question the government faced came from Justice Elena Kagan. She presented this hypothetical — in a future time, imagine a president, who is elected and is a “vehement anti-semite.” That president issues an order that dots the i’s and crosses the t’s in terms of process, but is a proclamation that says no person may be permitted from Israel.

Solicitor General Noel Francisco, who was making the case for the government, replied that if the administration as a whole agreed, then the court would be obligated to uphold the order. But, he pointed out, that hypothetical isn’t  the case here.

Kagan  responded: let’s just say this is an out-of-the-box president.

That prompted outright laughter in the court room.

In several friend-of-the-court briefs, former national security experts who have served in Republican and Democratic administrations alike,  argued that the travel ban not only violates American law but also has harmed national security.

“It actually made us less safe,” said Gen. Michael Hayden, who served as director of the National Security Agency from 1999 to 2005 and then CIA director from 2006 to 2009.

The Supreme Court is expected to render judgment in the Trump travel ban case in June. The case is Trump v. Hawaii, 17-965.

Chief Justice John Roberts and Justice Anthony Kennedy both signaled support for the travel policy in arguments Wednesday at the high court while Justice Sonia Sotomayor was clearly opposed.

EARLIER: Latest Trump Travel Ban Unconstitutional – 4th Circuit Court of Appeals – Richmond, Virginia, USA : The Fourth Circuit Court of Appeals sitting in Virginia ruled on Thursday that the latest iteration of President Trump’s travel ban is unconstitutional citing that it unlawfully discriminates against Muslims.

The court said it examined official statements from Trump and other executive branch officials, along with the proclamation itself, and found it “unconstitutionally tainted with animus toward Islam.”

The most recent iteration of the ban bars people from eight countries — six of which are predominantly Muslim — from coming to the U.S.

The court upheld a ruling by a federal judge in Maryland who issued an injunction barring enforcement of the ban against people from Chad, Iran, Libya, Somalia, Syria and Yemen who have bona fide relationships with people in the U.S.

The Supreme Court had decided in December that it would allow the latest travel ban to take effect while litigation – in the 9th US Circuit Court of Appeals, based in San Francisco, and the 4th US Circuit Court of Appeals in Richmond, Virginia – ran its course.

In that ruling the supreme court granted the administration’s request to fully enforce the third incarnation of Trump’s travel ban affecting six Muslim-majority countries – Chad, Iran, Libya, Somalia, Syria and Yemen.

The ruling rolled back lower court rulings that restricted enforcement based on bona fide relationships with US persons or businesses. Such exempt relationships had included grandchildren, grandparents, nieces, nephews and cousins of US persons.

Solicitor General Noel Francisco had argued before the supreme court that since June, “multiple government agencies have conducted a comprehensive, worldwide review of the information shared by foreign governments that is used to screen aliens seeking entry to the United States,” according to The Hill.

“Based on that review, the proclamation adopts tailored entry restrictions to address extensive findings that a handful of particular foreign governments have deficient information-sharing and identity-management practices, or other risk factors,” Francisco said.

In late December, a panel of the 9th Circuit Court of Appeals ruled against the third iteration of Trump’s travel ban, saying it goes against federal law. Today’s 4th US Circuit Court of Appeals in Richmond, Virginia ruling means litigation in the appeals courts have run it’s course and will now shift to the supreme court

The Supreme Court is set to hear arguments for and against the current version of the travel ban, updated in September to include some Venezuelan officials and North Korea. Lower courts have already approved those two latest additions to the list of countries.

The Supreme Court last month agreed to review the legality of Trump’s travel ban in April.

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Bamidele Ogunberu

Bamidele Ogunberu

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