Wall Street Journal
By Jess Bravin and Brent Kendall
April 22, 2018
The Supreme Court on Wednesday will consider whether President Donald Trump can legally restrict entry to the U.S. for travelers from several Muslim-majority countries, tackling a central issue of his presidency.
The case traces back to a defining moment in Mr. Trump’s campaign, when he called for “a total and complete shutdown of Muslims entering the United States.” That idea evolved through three travel bans of varying character and severity, the latest issued in September 2017.
The ban has become more measured in some respects, as the White House has sought to withstand legal scrutiny, though the current travel prohibitions have no expiration date, a contrast from the temporary nature of the earlier bans.
To prevail, the government may have to persuade the justices that the current order is untainted by religious bias, contrary to the findings of some lower courts. The administration also will assert that the ban is needed to help prevent terrorist attacks.
Clarifying the scope of the president’s power over immigration and national-security policy is a momentous task in itself. But in a matter so closely tied to Mr. Trump’s own instincts and style, the case amounts to something of a personal test for the president, as well as a legal one.
While the dispute involves a number of familiar legal questions involving the interpretation of statutes and constitutional provisions, Mr. Trump’s habit of regularly tweeting and otherwise declaring his opinions has added additional dimensions.
“One is the question of when the executive can free itself from the taint of earlier remarks or earlier actions, because if you pretend there were no campaign promises of a Muslim ban and there was no Version 1.0 of a travel ban, the administration’s position looks a lot better,” said Kermit Roosevelt, a law professor at the University of Pennsylvania.
The Supreme Court has tread carefully when considering a handful of preliminary matters involving the travel ban and other disputed Trump administration policies, suggesting the justices may be reluctant to pare back Mr. Trump’s authority in ways that could curtail the powers of future presidents.
In lower court litigation, Justice Department lawyers have had to defend the immigration policy not only from opposing counsel but also from Mr. Trump’s own tweets and comments, which judges have suggested undercut official arguments that the ban is aimed at protecting national security, not discriminating against Muslims.
Solicitor General Noel Francisco is likely to face similar questions Wednesday.
In legal filings, Mr. Francisco argues the courts have no business examining the travel ban at all. “Congress has granted the president sweeping power to suspend or restrict entry of aliens abroad,” he writes. Mr. Trump “lawfully exercised that power based on his express findings—following a world-wide, multiagency review—that entry of the covered aliens would be detrimental to the national interest.”
The countries at issue are Iran, Libya, Somalia, Syria and Yemen, although the restrictions imposed on them vary somewhat. The government says those nations lack “identity-management and information-sharing protocols and practices” sufficient for U.S. officials to assess whether their nationals are too dangerous to allow in. Chad was on the list until earlier this month, when the administration said the African nation had improved its information-sharing practices.
The ban also prohibits travel by North Koreans and certain government officials in Venezuela. The challengers don’t contest its application to those two non-Muslim countries.
Lower courts blocked all or part of the three versions of the travel ban, concluding that Mr. Trump’s efforts to shore up the ban, including a government study on vetting procedures around the globe, were insufficient.
In Wednesday’s case, filed by the state of Hawaii, the San Francisco-based Ninth U.S. Circuit Court of Appeals found the president can’t exclude a class of immigrants unless he makes a specific assessment about why they’re a threat, not categorical assumptions regarding visitors from an entire nation.
The Ninth Circuit’s opinion, while avoiding direct comment on Mr. Trump’s motives, signaled its views by citing a dissent from Korematsu v. U.S., the Supreme Court’s now-discredited 1944 decision upholding the wartime internment of Japanese-Americans. Referring to Muslims, the appeals court said it was contrary to the public interest “that a portion of this country be made to live in fear.”
Despite the lower-court victories for opponents of the ban, the administration appears to have better odds of prevailing at the Supreme Court. In contrast to lower court judges, the justices have proceeded cautiously so far.
Asked last summer to set aside an order blocking implementation of travel ban No. 2, the justices allowed parts of the order to take effect against aliens with no direct connection to the U.S., while blocking the restrictions against those with clearer ties to the country. And in December, an unsigned order from the court permitted ban No. 3 to take full effect while the challenges continued.
Such caution isn’t unusual when court is faced with matters carrying strong political implications, as the justices often prefer to be viewed as standing apart from the political fray.
That could present a challenge for Hawaii’s lawyer, Neal Katyal, a former acting solicitor general in the Obama administration. Mr. Katyal has assembled a broad alliance designed to suggest that the Trump administration’s position lies beyond the U.S. mainstream.
More than 100 companies, predominantly tech-industry names such as Alphabet Inc.’s Google unit, Amazon.com Inc., Uber Technologies Inc. and Verizon Communications Inc., filed a brief contending the president’s order harms innovation and economic growth.
Universities and religious groups also filed briefs against the ban, as did national-security experts who disputed its effectiveness in preventing terrorism.
The administration’s outside backing primarily comes from conservative advocacy groups such as Citizens United and the American Center for Law and Justice.
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.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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