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Supreme Court wrestles with legality of Trump travel ban

26 April 2018

But Trump's lawyer, Solicitor General Noel Francisco, said any comments the president made on the stump should be entirely "out of bounds" in the Supreme Court.

In the court's first full-blown consideration of a Trump order, the conservative justices who make up the court's majority seemed unwilling to hem in a president who has invoked national security to justify restrictions on who can or cannot step on USA soil.

The challengers, led by the state of Hawaii, say judges must view the proclamation in the context of Trump's earlier, campaign-trail rhetoric, including his call for "a total and complete shutdown of Muslims entering the United States".

Each of the two lawyers was questioned closely on those two points, with the Court's more liberal Justices testing Francisco and its more conservative members pressing Katyal. The justices will decide whether it violates immigration law or the Constitution. Given that this looks (for now anyway) like a narrowly split decision and the late date in the session for the argument, the decision would most likely get published at the very end, sometime in mid-to-late June.

While the justices often don't indicate during oral argument which way they will vote, only Justice Anthony Kennedy among the court's five conservatives sounded conflicted.

Katyal argued that one of the defects with the ban is that it is perpetual.

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

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Justice Kagan drew laughter at one point when she offered a hypothetical of "an out-of-the box kind of president", and the audience chortled when Chief Justice John G. Roberts Jr. pondered the hypothetical of what a president was to do on national security when he found himself confronted with a Congress that couldn't get things done.

Justice Sonia Sotomayor pressed him further, in an exhcnage that seemed to tread on issues of the moment in with Washington consumed by speculation about Mr. Trump's relationship with his top aides.

Roberts asked whether the president could take any action in the Muslim world without the courts probing him for religious bigotry.

He told the justices that they shouldn't look at Trump's campaign statements, which included a pledge to shut down Muslim entry into the U.S. The last time the court did that was for gay marriage arguments in 2015.

"So you want the president to say, 'I'm convinced that in six months we're going to have a safe world?'" Kennedy asked. "This is not a so-called 'Muslim ban.' If it were, it would be the most ineffective Muslim ban that one could possibly imagine", because it excludes the vast majority of the Muslim world, he said.

Both sides say that if the court greenlights the ban it will send a strong message for other presidents and could shed light on how courts should consider statements a president makes during a campaign or on his Twitter feed.

The hearing was the culmination of a 15-month battle over a policy that quickly became a hallmark of the Trump era.

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Consequently, the judge is giving the Trump Administration 90 days to challenge the court's ruling.

Even Justice Kagan seemed troubled by aspects of Katyal's argument.

The high court showdown was of such interest that Roberts agreed to release the audio recording of the morning's oral argument later in the day, rather than at the end of the week.

The Supreme Court on December 4 signaled it may lean toward backing Trump when it granted on a 7-2 vote his administration's request to let the ban go into full effect while legal challenges played out.

Hawaii joined a group of three people and the Muslim Association of Hawaii in challenging the new order in Hawaii federal court, claiming it violated the INA and the establishment clause of the First Amendment.

They support the challengers' argument that the president has exceeded his authority in enacting the ban.

"My family members can not come here-those who don't have citizenship, so it impacts me personally and it impacts the state of Minnesota with a large east Africa population", he said. Chad was initially on the list, but was removed following security upgrades and cooperation with US government, the administration said. Critics said the changes didn't erase the ban's legal problems.

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In addition to the Muslim ban, the administration has left tens of thousands of vulnerable refugees-disproportionately Muslims-stranded in risky situations, unable to find safety on our shores or reunite with family members.

Supreme Court wrestles with legality of Trump travel ban