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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Thursday, April 26, 2018

Justices Probe Limits of Presidential Powers in Travel-Ban Case

Wall Street Journal
By Jess Bravin, Brent Kendall, and Laura Meckler
April 25, 2018

The Supreme Court justices jumped into the debate over President Donald Trump’s travel ban Wednesday, issuing rapid-fire questions and hypotheticals as they weighed the president’s power to protect the country against allegations that he had exceeded his authority and was motivated by bias.

The justices were scrutinizing the current version of an order Mr. Trump issued, days after taking office, banning entry to the U.S. from several Muslim-majority countries. The president said that was needed to prevent possible terrorist attacks, but critics charged religious bias, noting that as a candidate Mr. Trump had called for “a total and complete shutdown of Muslims entering the United States.”

Justice Elena Kagan Wednesday asked whether, in theory, a president elected after a virulently anti-Semitic campaign could, after consulting with staff, ban travel by Israelis. Solicitor General Noel Francisco, representing the government, called that a “very tough hypothetical,” but said Mr. Trump’s proclamation is different and that various federal agencies helped write it.

Chief Justice John Roberts, taking a line more favorable to Mr. Trump, asked whether a president could ban Syrian travelers if intelligence officials told him Syrians were planning to come to the U.S. with chemical weapons. Neal Katyal, the attorney representing the state of Hawaii, which is challenging the ban, said that would be permissible because—unlike the current situation—it was a fast-moving emergency.

In the current version of Mr. Trump’s proclamation, travel is restricted from Iran, Libya, Somalia, Syria and Yemen, with the restrictions varying somewhat among the countries. The administration says those countries have insufficient mechanisms for the U.S. to reasonably assess whether their nationals should be admitted.

Chad was also on the list until recently, when the U.S. concluded it had sufficiently improved its information-sharing procedures. The ban also covers North Korea and some Venezuelan government officials, but the challengers are not contesting the inclusion of these two non-Muslim majority countries.

After more than a year of intense litigation, Wednesday’s oral argument was not as highly charged as some court watchers anticipated. The justices, while active, did not appear as animated as they have been in other blockbuster cases this term, including on gay rights and partisan gerrymandering.

By the end of the argument, the Trump administration appeared to have the better odds of winning, though the outcome is far from certain. Perhaps not surprisingly, the court’s liberal justices expressed discomfort with Mr. Trump’s efforts, but the court’s conservative majority did not seem eager to clip the president’s wings, particularly given his wide latitude over the border and national security.

The issue has become central to Mr. Trump’s presidency and Americans’ divided view of it, with some cheering the ban as a long-overdue effort to curtail immigration and protect the country, and others seeing it a reflection of Mr. Trump’s alleged nativism.

Those divisions, if not the passions, were reflected in Wednesday’s oral argument. Mr. Francisco said that, far from showing religious bias, the administration conducted a world-wide survey to determine which countries should be subject to the ban. “The vast majority of the world, including the vast majority of the Muslim world,” was excluded, he said.

Responding to arguments that Mr. Trump had exceeded the authority given to him by Congress, Mr. Francisco said lawmakers had given the president the ability to impose additional restrictions. “It’s up to the executive branch to constantly improve” the screening system, he said.

Justice Samuel Alito suggested he believed Mr. Trump’s actions were allowable because the president is authorized under federal immigration law to exclude “any” alien whose presence would be detrimental to the U.S. Mr. Katyal said that did not include banning visitors from entire countries.

Several justices asked about Mr. Trump’s past statements about Muslims. Mr. Francisco said statements Mr. Trump made as a candidate should be “out of bounds” because Mr. Trump was a private citizen at the time. Taking the oath of office and getting advice from his cabinet marked a “fundamental transformation,” he said, making previous statements irrelevant.

Mr. Katyal, an acting solicitor general in the Obama administration, countered that the president had not repudiated such rhetoric after taking office. Rather, he said, Mr. Trump had reiterated the sentiments, for example by retweeting anti-Muslim videos.

Justice Stephen Breyer asked whether the ban had appropriate exceptions and waivers for “decent people” from the banned countries who may have good reasons to come to the U.S., and suggested he was not reassured by Mr. Francisco’s arguments.

The argument is among the final steps in a long legal journey. Following immediate legal challenges to the ban when it was first issued, the White House modified it, ultimately issuing three versions of varying character and severity. The ban has become more measured in some ways, but the current prohibition has no expiration date, unlike the earlier versions.

The case also highlights the unorthodox nature of Mr. Trump’s tenure, notably his tendency to tweet and otherwise declare sentiments other presidents might keep to themselves. For his part, the president has become openly frustrated by lower-court judges’ actions to block the travel ban.

​Justice Kagan alluded to that political backdrop, styling a hypothetical to involve “an out-of-the-box kind of president.” The courtroom audience responded with knowing laughter. ​

As a handful of preliminary matters regarding the travel ban have reached the court in recent months, the justices have signaled a desire to tread carefully, suggesting a reluctance to take aggressive action limiting presidential power.

Lower courts have blocked all or part of all three versions of Mr. Trump’s action. In the case at issue Wednesday, the San Francisco-based Ninth U.S. Court of Appeals ruled that the president cannot exclude a class of immigrants unless he makes a specific assessment about why they pose a threat.

Pre-argument filings by critics of the ban suggested an effort to portray Mr. Trump’s action as outside the mainstream. More than 100 companies, including such marquee names as Alphabet Inc.’s Google and Amazon.com , filed a brief contending that the travel ban hurts innovation and economic growth. Universities and religious groups also filed briefs taking issue with the president’s move.

Conservative groups, including Citizens United and the American Center for Law and Justices, argued that Mr. Trump has every right to issue the proclamation in his constitutional role overseeing national security.

The travel ban arguments are the last of the Supreme Court’s current term. The justice are expected to rule by the end of June.

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