SCOTUS Will Hear Oral Argument on Travel Ban Wednesday

Navy Rear Adm. Ronny Jackson walks on Capitol

Almost 15 months after the first round of President Donald Trump's travel ban kicked in, sparking angry protests at global airports across America, the Supreme Court is set to hear arguments this morning on whether the controversial policy violates federal law or the U.S. Constitution.

Another of the Trump Administration's immigration policies is also under challenge. But in December, the justices allowed it to go into effect, and in January they scheduled it for oral argument. But Wednesday was the first time the justices considered the travel ban in open court.

The administration replaced an earlier version on September 24 with a presidential proclamation that is based on a review of compliance with USA vetting standards.

The court will consider whether the president can indefinitely keep people out of the country based on nationality. It is also looking at whether the policy is aimed at excluding Muslims from the United States.

In rebuttal, the administration says these proposed limitations "cannot be squared with the statutory text or historical practice [of] past presidents, and would diminish the ability of this and future presidents to use those provisions to protect the United States and conduct foreign affairs".

The hypothetical gets at the heart of the constitutionality of the travel ban, and whether the president, after calling for a "total shutdown" of Muslims entering the country, can persuade the justices that his ban does not discriminate on the basis of religion. The 9-4 decision took a deep dive into Trump's statements and tweets since he became president, and concluded that the proclamation, like the first two, was motivated not by national security concerns but by antipathy toward Muslims. Speaking of a hypothetical "local candidate", he asked if what was said during the candidate's campaign was irrelevant if on "day two" of his administration the candidate acted on those statements. There is a "fundamental transformation" from candidate to president, and only the comments of the sitting president would trigger constitutional questions.

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Josh Blackman, a law professor at the South Texas College of Law in Houston, believes the justices will find that the travel ban passes legal muster.

In requesting that the court provide a final answer on the travel ban, Solicitor General Noel Francisco emphasized that the president was well within his power to issue the proclamation and that it came after a thorough, worldwide review. The decision effectively overturned a compromise in place since last June, when the court said travelers with connections to the United States could continue to travel here notwithstanding restrictions in an earlier version of the ban. In 1987, President Regan instituted an anti-HIV travel ban. Nonetheless, people started lining up at 7 a.m. Sunday in hopes of snagging a seat Wednesday. "Ever" and "Refugees Welcome", among other things.

The attorney challenging the travel ban on behalf of the state of Hawaii, Neal Katyal, went further, accusing President Trump of "taking a wrecking ball" to Congress' right to determine the country's immigration laws, giving him "a power that no President in 100 years has exercised". After an hour of oral argument, the court seemed likely to hold that the rule adopted by the lower court, which would generally require deference to a foreign government's interpretation of foreign law, is too rigid - even if the justices weren't sure precisely what the contours of the new rule should be. Its replacement was allowed to take partial effect, but expired in September. About a month later, Trump announced a new travel ban that blocked nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen-but not Iraq, as the first one did-from entering the U.S.

"The Proclamation reflects President Trump's view that "there is great hatred towards Americans by large segments of the Muslim population" and that 'Islam hates us, '" more than 140 lawmakers, including 31 Democratic or independent senators, wrote in a brief.

In short, the government argues that as long as it gives reasons for the ban, the courts are not to look behind those reasons to see whether there is evidence to justify them.

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