The weak arguments made on Wednesday in the Supreme Court against President Donald Trump’s restrictions on travel from dangerous countries demonstrate that the government should win the case. The justices should rule in favor of upholding the president’s authority to protect national security and the safety of the American public.
It was a rainy, overcast day in the nation’s capital, but that did not stop protesters outside the Supreme Court who were yelling about the so-called Muslim ban, which exists only in their fevered imaginations. The weather also did not deter those attending the arguments inside the courtroom, which was packed with Washington’s media and political elites, including Don McGahn, Trump’s White House counsel, and legislators including Representative Bob Goodlatte, chairman of the House Judiciary Committee. Even Lin-Manuel Miranda, author of the Broadway musical Hamilton, was there.
The justices heard their final oral arguments of the term in U.S. v. Hawaii, the case filed against Trump’s revised proclamation of September 24, 2017. That proclamation was issued after an intensive, multi-agency review applied to 200 countries. The Department of Homeland Security recommended that entry be restricted from eight countries that, as Noel Francisco, the solicitor general, told the Court, “failed to provide the minimum baseline of information needed to vet their nationals.”
The countries included Iran and Syria, state sponsors of terrorism; Libya, Yemen, Chad, and Somalia, which have extensive terrorist activities inside their borders; and two non-Muslim countries, North Korea and Venezuela.
Francisco put on a very strong case on behalf of the government. He relied heavily on a straightforward provision of federal immigration law, whereby Congress gave the president the power to “suspend the entry of all aliens or any class of aliens” if he finds that their entry “would be detrimental to the interests of the United States.” As Francisco argued, “the proclamation reflects a foreign-policy and national-security judgment that falls well within the president’s power” under this federal law.
The solicitor general argued against the courts’ getting involved in this, since “the whole vetting system is essentially determined by the executive branch. It’s up to the executive branch to set it up. It’s up to the executive branch to maintain it. And it’s up to the executive branch to constantly improve it.” He pointed out that prior presidents, Carter and Reagan, used this law to restrict entry from Iran and Cuba, and Justice Anthony Kennedy noted that Trump’s proclamation contains more detail on the specifics of the grounds for the restrictions than did those prior presidential proclamations.
As Francisco made clear, this proclamation cannot possible be categorized as a Muslim ban. If it was supposed to be a Muslim ban, “it would be the most ineffective Muslim ban that one could possibly imagine, since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.”
The proclamation also “exerts diplomatic pressure on those countries [that fall below the baseline established by the Department of Homeland Security] to provide the needed information and to protect the country until they do.” Chad improved its behavior, which is why it has since been taken off the September 24 list.
Trump’s proclamation has a provision that allows the government to waive the entry restriction if an alien has family in the U.S., significant contacts through business, or professional obligations (including as a student or as an employee), needs urgent medical care, or has other “special circumstances” justifying his entry. Justice Stephen Breyer questioned Francisco about whether the waiver provision was real or not, citing a brief that claimed that a waiver had been granted to only two aliens.
Francisco noted that the information was wrong: Over 400 aliens had received waivers. Breyer also questioned how aliens could possibly know about the waiver process. Francisco noted that the waiver provisions are on the State Department’s website and that consular officers at U.S. embassies automatically apply the waiver provisions. It was an odd question from Breyer. He seemed to be implying that the validity of the president’s action depended on whether the government had advertised the waiver rules in foreign countries.
Neal Katyal, the lawyer for Hawaii, at one point told Justice Samuel Alito that Congress needed to read a “limit” into the statute that the president was relying on, even though there is no such limit in the law. He was in essence urging the Court to rewrite the statute. He also complained that the president’s proclamation was “perpetual,” as if it were somehow unlawful because it didn’t have a “sunset” provision in it.
The solicitor general effectively refuted all of the legal arguments and false claims made against Trump, whose proclamation restricting entry from seven dangerous countries was within his authority as commander in chief and within the power given to him by Congress.
Justice Anthony Kennedy responded that the statute authorizes the president to act “for such period as he deems necessary.” Katyal, as Kennedy joked, seemed to be arguing that the president was required to say “I’m convinced that in six months we’re going to have a safe world.”
Katyal significantly hurt his case further in response to a question from Chief Justice John Roberts, who asked about Trump’s supposedly anti-Muslim statements that, Hawaii claims, prove the proclamation to be discriminatory. “If tomorrow [the president] issues a proclamation saying he’s disavowing all those statements, then the next day he can reenter this proclamation?” Roberts asked. Katyal answered “yes” and admitted that if the president did that, then Hawaii’s discrimination claims would no longer be applicable.
To Katyal’s admission, Francisco pointed out in response that Trump had made clear on September 25 that “he had no intention of imposing the Muslim ban, . . . that Muslims in this country are great Americans and there are many, many Muslim countries who love this country and he has praised Islam as one of the great [religions] of the world.”
The solicitor general effectively refuted all of the legal arguments and false claims made against Trump, whose proclamation restricting entry from seven dangerous countries was within his authority as commander in chief and within the power given to him by Congress by statute. The Supreme Court should rule against Hawaii, throw out its claims, and finally end this endless litigation, which has been a keystone of the Resist Trump movement.
This piece originally appeared in The National Review on 4/26/18