Wednesday, July 17, 2024
Hawai'i Free Press

Current Articles | Archives

Wednesday, April 25, 2018
Supremes Lean Toward Trump In Travel Ban Hearing
By Selected News Articles @ 3:26 PM :: 5194 Views :: National News, Law Enforcement

Supremes Lean Toward Trump In Travel Ban Hearing

by Kevin Daley, Daily Caller, 4/25/2018

The U.S. Supreme Court appeared deeply divided Wednesday over the lawfulness of President Donald Trump’s travel sanctions.

Though a tenuous majority appeared to favor the administration, the liberal bloc peppered Solicitor General Noel Francisco with brutal hypotheticals and heart-wrenching examples of migrants denied entry to the United States since Trump took office.

Justice Elena Kagan asked Francisco how thoroughly the court could review a ban on migration from Israel enacted by an openly anti-Semitic president, while Justice Ruth Bader Ginsburg wondered why a ten-year-old with cerebral palsy from a sanctioned country was denied a visa, despite exceptions proscribed for immigrants seeking medical care.

The coalition challenging the ban makes two different arguments. Their principal claim is that the sanctions exceed Trump’s authority under the Immigration and Nationality Act (INA), which prohibits discrimination on the basis of nationality in the issuance of visas. They also claim the administration’s true purpose is to disfavor Islam, in violation of the First Amendment.

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 third iteration of the president’s travel sanctions were assessed against various nationals from Chad (which has since been removed from the list), Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The penalties were crafted through an interagency process that sought to identify states that fail to satisfy specific security and information-sharing criteria. This broad-based review places the proclamation on surer legal ground, a point to which Francisco repeatedly returned during Wednesday’s proceedings.

Justice Anthony Kennedy, who likely holds the deciding vote, appeared to agree, noting the order at issue was more detailed than similar proclamations issued by former Presidents Jimmy Carter and Ronald Reagan. He elsewhere rejected hypotheticals proffered by Kagan and Justice Sonia Sotomayor, noting other legal avenues exist to address the abuses envisioned in their scenarios.

Still, critics charge Trump’s rationale is deceptive. A coalition of states and civil rights groups led by Hawaii say no process, no matter how exacting or prudential, could remove the taint of Trump’s purported animus for Islam, expressed on Twitter and in a handful of statements made since taking office.

“The evidence is overwhelming that EO-3 was issued for the unconstitutional purpose of excluding Muslims from the United States,” Hawaii’s brief reads. “A litany of statements by the president and his administration, stretching from the presidential campaign to the weeks after EO-3 was released, plainly announce the president’s aim of blocking Muslim entry.”

Francisco countered that the court must assume the administration is acting in good faith provided it cites a reasonable basis for its actions. In a 1972 immigration case called Kleindienst v. Mandel, the justices ruled that courts should not probe for intent when the government can produce a “facially legitimate” justification for its policies.

Kagan seized on this point, prompting her hypothetical about a ban on Israeli migrants.

“Let’s say, in some future time, a president gets elected who is a vehement anti-Semite,” she asked the SG. “And what emerges is a proclamation that says no one shall enter from Israel. Do you say Mandel puts an end to judicial review of that set of facts?”

She wryly emphasized Francisco should imagine an “out-of-the-box president,” drawing laughter from the audience in the courtroom, which included two U.S. senators, famed playwright Lin Manuel Miranda, and Karen Korematsu, the daughter of a Japanese-American whose challenge to President Franklin Roosevelt’s internment policy reached the Supreme Court in 1944.

Justice Samuel Alito was skeptical the ban betrays anti-Muslim bias. He noted just 5 of 50 Muslim-majority countries are subject to sanctions under the current proclamation, accounting for less than 10 percent of the global Islamic population.

“Would a reasonable observer think this is a Muslim ban?” he asked.

Chief Justice John Roberts wondered if the animus argument could infect other areas of government policy.

“What if military advisors tell the president that, in their judgement, [he] ought to order an airstrike against Syria,” he said. “Would you regard that as discrimination against a majority Muslim country?”

Ginsburg and Justice Stephen Breyer seemed concerned the government was not actively implementing exceptions to the sanctions, noting dozens of scholars and medically incapacitated applicants filed amicus (or “friend-of-the-court”) briefs indicating the administration was not faithfully following its own policy. The current ban exempts non-citizens seeking medical treatment, and professors or exchange students affiliated with American universities.

Though sensitive to these concerns, several conservative justices suggested Hawaii was asking the court to scrutinize the president’s national security determinations, a domain in which he has wide authority subject to limited review.

In that vein, Kagan told Neal Katyal, who represented the challengers, that it was difficult to see how the Court could produce a ruling striking down the ban that doesn’t second-guess national security findings.

“The question is how to do the kind of analysis that you want us to do without in some sense evaluating the adequacy of those national security interests,” she said.

Speaking before Wednesday’s argument, Attorney General Jeff Sessions expressed confidence the administration would prevail.

“After multiple agency heads conducted a comprehensive, worldwide review of foreign governments’ information-sharing practices and other risk factors, President Trump determined this travel order is critical to protecting the American people,” Sessions said. “We look forward to defending the order’s lawfulness today in the Supreme Court.”

Audio of the argument is available at this link. A decision is expected by late June.


TEXT "follow HawaiiFreePress" to 40404

Register to Vote


Aloha Pregnancy Care Center


Antonio Gramsci Reading List

A Place for Women in Waipio

Ballotpedia Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii


Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii ConCon Info

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federation of Republican Women

Hawaii History Blog

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Legal Short-Term Rental Alliance

Hawaii Matters

Hawaii Military History

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Together


Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

July 4 in Hawaii

Land and Power in Hawaii

Lessons in Firearm Education

Lingle Years

Managed Care Matters -- Hawaii

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

National Parents Org Hawaii

NFIB Hawaii News

NRA-ILA Hawaii


OHA Lies

Opt Out Today

Patients Rights Council Hawaii

Practical Policy Institute of Hawaii

Pritchett Cartoons

Pro-GMO Hawaii

Rental by Owner Awareness Assn

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

School Choice in Hawaii

Talking Tax

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii