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Key moments from the Supreme Court arguments on Trump’s travel ban

The Supreme Court heard arguments Wednesday over a version of President Donald Trump’s travel ban, which bars people from seven countries, five of them majority-Muslim, from entering the U.S.

This morning’s arguments marked the first time the high court has taken up a Trump administration policy — one that was widely criticized by opponents as a “Muslim ban” after it was first implemented shortly after Trump took office.

The audio recordings of the Supreme Court arguments in the travel ban case were released today. Listen to the arguments in the player above.

Lower courts blocked the two first iterations of the policy, which, citing security concerns over Islamic State militants, sought to prohibit travelers from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from coming into the U.S. (The second version of the ban took Iraq off the list, and the third version took off Sudan and added Chad, Venezuela and North Korea; the Trump administration took Chad off the current list this month.)

In December, the Supreme Court allowed the latest version of the Trump travel ban to continue while the justices worked through their review. During Wednesday’s arguments, the justices asked how much the president’s campaign comments — such as the promise of a “total and complete shutdown of Muslims entering the United States” — ought to be factored into a policy rollout like the travel ban once he was in office. Other justices appeared unwilling to undermine the president’s national security decisions.

Here are some major moments from Wednesday’s arguments in front of the court.

1. The hypothetical ‘out-of-the-box president’

Court sketch by Bill Hennessy

Court sketch by Bill Hennessy

Justice Elena Kagan put forward a hypothetical to Solicitor General Noel Francisco, who defended the federal government: What if a future president, who was known as a “vehement anti-Semite” on the campaign trail, pushed forward policies that targeted Israel? Francisco responded by saying that this hypothetical leader would be allowed to implement such a policy despite any “animus.”

FRANCISCO: If his cabinet — and this is a very tough hypothetical that we’ve dealt with throughout — but if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the President would be allowed to follow that advice even if in his private heart of hearts he also harbored animus. …

KAGAN: … This is a out-of-the-box kind of President in my hypothetical. (Laughter.) And — and, you know, he thinks that there are good diplomatic reasons, and there might — who knows what the future holds, that there might be good diplomatic reasons to put pressure on Israel or to say we want Israel to vote a certain way in the U.N. and this is a way to better our diplomatic hand, and so this is what he does. And — and who knows what his heart of hearts is. I mean, I take that point. But the question is not really what his heart of hearts is. The question is what are reasonable observers to think is making virulent anti-Semitic comments.

FRANCISCO: Right. And, Your Honor, it’s a tough hypothetical, but it’s why I also think that this is a relatively easy case, because we’re willing to even assume for the sake of argument that you consider all of the statements. And we’re even willing to assume for the sake of argument, though we think that it’s wrong, that you applied some kind of domestic establishment clause jurisprudence, because we’re quite confident that, given the process and substance that form the basis of this proclamation, no matter what standard you apply, this proclamation is constitutional. Since we don’t have the extreme hypothetical that you’re suggesting, Your Honor, we do have a multi-agency worldwide review and a Cabinet-level recommendation that applied a neutral baseline.

2. Justice Sonia Sotomayor has a lingering thought on this hypothetical president.

Solicitor General Noel Francisco before the Supreme Court justices. Court sketch by Bill Hennessy

Solicitor General Noel Francisco before the Supreme Court justices. Court sketch by Bill Hennessy

Justice Sotomayor doubled down on the concerns of Kagan’s hypothetical president’s campaign behavior, asking if the president’s Cabinet was subject to “thorough review” if they were ordered to carry out a potentially anti-Semitic policy. Francisco said the Cabinet is sworn to uphold the Constitution and its merits.

SOTOMAYOR: General, today, can we go back to something that’s been bothering me here, which is … that the President is the head of the executive branch and that he should have, for those who are in the extreme of this theory or — or on one end of the theory — not extreme, that he can hire or fire anyone he wants and that he can put in place whatever policy he wants. If we take Justice Kagan’s hypothetical president, who basically says to his review committee, ‘I want to keep out Jews — period; find a way.’ That’s their charge. So, in that situation, why would the actions of the committee, whatever this is, Executive Committee, not be subject to great suspicion and to thorough review …, given that they are responsible to the executive, and they’ve been told what the outcome of their deliberations must be?

FRANCISCO: … the President’s Cabinet, just like all of us here, is duty-bound to protect and defend the Constitution. So I would expect that if any Cabinet member were given that order, that Cabinet member would refuse to comply or resign in the face of a plainly unconstitutional order. … you have the Cabinet doing its job through the agencies, where they ask the agencies to construct and apply this neutral standard to every country in the world, including every Muslim country. They concluded that the vast majority of the world, including the vast majority of the Muslim world, was just fine, but there were problems with a small number of countries and so imposed pressure, recommended pressure, to help move those countries across the line.

3. Is the travel ban truly a “perpetual problem”?

Attorney Neal Katya before the Supreme Court justices. Court sketch by Bill Hennessy

Attorney Neal Katya before the Supreme Court justices. Court sketch by Bill Hennessy

Attorney Neal Katyal, representing the state of Hawaii in the case, had an important back-and-forth exchange with Justice Anthony Kennedy, a conservative justice who has been the swing vote in major rulings in recent years, over the assertion that the travel ban was a “perpetual problem.” Kennedy, in response, asked if a president could reasonably say there could be a “safe world” in 180 days.

ALITO: What is your basis for saying that [the travel ban] is perpetual?

KATYAL: Well, there’s nothing in the order that ends it. And you heard my friend say, “Oh, that would doom all executive orders.” But that’s not true. Half of these —

KENNEDY: I thought it had to be reexamined every 180 days?

KATYAL: No, that’s not what it says. It says there’s a report that has to come in at 180 days, and nothing happens at the end of the report.

KENNEDY: Well, that — that indicates there will be a reassessment? … And then the President has continuing discretion?

KATYAL: Justice Kennedy, this argument wouldn’t be there if there was anything about reassessment, the way there are in about half the orders, including the Cuba order, which says it sunsets once the crisis ends. There’s nothing like that in this. And it’s just like a reporting requirement to Congress in which Congress isn’t necessarily required to do anything. Congress has statutes like that all the time. This is that. And that’s why this is unlike any other executive order. If you go back and look at all 43 executive orders that Presidents have issued, none of them have even arguably countermanded Congress’s judgment in the area. They’ve all been consistent. They’ve all been supplements.

KENNEDY: Well, the statute says first that 1182 for such period as he deems necessary, and he can have continuing supervision over whether it’s still necessary.

KATYAL: Again, we wouldn’t have a problem with that if it was tailored to a crisis, it says it sunsets, and then, you know, could be re-upped or something like that. That’s not what this says. This is about a perpetual problem.

KENNEDY: So you want the President to say, I’m convinced that in six months we’re going to have a safe world?

KATYAL: Well — well — well, no, Justice Kennedy, that’s not our argument. Our argument is, here, the President is identifying something that is a perennial problem. Our brief says it goes back 100 years, you know, when the Soviet Union was around, we don’t have countries that cooperate with us in vetting. And the solution has always been from Congress not to have a flat ban, but instead to have a fine-grained vetting system to balance these considerations.

4. The executive branch’s ability to make national security decisions

Chief Justice John Roberts, in his questioning, wondered if a president would be too restricted from enacting national security measures if the office was prevented from targeting specific countries. Roberts specifically asked what would happen if the vetting procedures weren’t “taken seriously” under new leadership.

ROBERTS: What about -­ what about a change of administration in a particular country, in which perhaps the vetting procedures are not going to be taken seriously? That Congress could not have anticipated?

KATYAL: Well, but, again, Congress anticipated a country that is a “state sponsor of terrorism” and even for — with respect to that, providing no information and indeed fomenting against the United States, Congress said, “Oh, we’re not going to have a nationality ban.” You know, they flatly banned that and said we’re going to have individualized vetting and this Visa Waiver Program carrot to try and deal with that, you know, dangerous regime. Now, again, I can imagine an emergency situation in which the President would have even greater authority for that, but, here, we are 460 days later and I would caution the Court not to make a decision about the emergency you’re concerned about. That can be bracketed as it was in Youngstown, as it was in Hamdan. This is so far from that. The text of 1152 is flatly violated here. It says there shall be no discrimination on the basis of nationality with the issuance of visas. That is 39 percent of all the visas this executive order covers. It’s not a small part. It’s a large part. And it is the most important part because immigrant visas are the kind of heart about, you know, what the nation becomes. It’s people who want to come here and become part of our long-term polity. This executive order flatly contradicts that. Now, if you accept his interpretation — he says, well, you know, we’re discriminating at the entry side, not at the visa side. If you do that, you are giving the President the power to undo — and he’s actually just done it — he’s undone the ban on nationality-based discrimination. He’s imposed country quotas of zero for these countries at the border.

5. Is it a “Muslim ban”?

Justice Samuel Alito openly asked Katyal if a closer look at the justifications for the travel ban led someone to believe that the Trump policy was a “Muslim ban.” Katyal answered yes, but Alito later flatly said, “it does not look at all like a Muslim ban.”

ALITO: Mr. Katyal, would any reasonable observer reading this proclamation, with — without taking into account statements, think that this was a Muslim ban? I mean, there are — I think there are 50 predominantly Muslim countries in the world. Five — five countries — five predominantly Muslim countries are on this list. The population of the — of the predominantly Muslim countries on this list make up about 8 percent of the world’s Muslim population.

KATYAL: Absolutely …

ALITO: If you looked at the 10 countries with the most Muslims, exactly one — Iran — would be on that list of the top 10. So would a reasonable observer think this was a Muslim ban?

KATYAL: If it were just the text of the order alone, it might raise eyebrows, for fit and other reasons that the briefs go into, but we wouldn’t be here. We absolutely agree that just — it’s the same test as in Lukumi and other cases. You have to look to all the circumstances around it that are said, the publicly available ones. You know, and, Justice Alito, the fact that the order only come — encompasses some Muslim countries I don’t think means it’s not religious discrimination. For example, if I’m an employer and I have 10 African-Americans working for me and I only fire two of them, I don’t think — you know, and say, well, I’ve left the other eight in, I don’t think anyone can say that’s not discrimination.

ALITO: No, I — I understand that. And it is one of our fundamental values that there is religious freedom here for everybody in that, number — adherence to every religion are entitled to equal treatment. My only point is that if you look at what was done, it does not look at all like a Muslim ban. There are other justifications that jump out as to why these particular countries were put on — on the list.

Analysis: The constitutional showdown over President Donald Trump’s travel ban