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What motivated Trump’s travel ban? Supreme Court weighs relevance of campaign statements

In arguments over President Trump's travel ban, Supreme Court justices were concerned with questions of the president's authority and whether it was his intention to discriminate against Muslims. Marcia Coyle of the National Law Journal joins Judy Woodruff to review the travel ban’s day in court.

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  • Judy Woodruff:

    We return now to the arguments at the Supreme Court today over the legality of President Trump’s travel ban.

    Marcia Coyle of “The National Law Journal” was inside the court, and she is here with me now.

    So, Marcia, welcome.

    This is such a watched set of arguments before the court. People have been talking about this, anticipating it for months. Tell us, what were the main concerns that were discussed today?

  • Marcia Coyle:

    Judy, the justices really are focused on three key issues before the court.

    And that is, did President Trump exceed his authority under federal immigration law in issuing this proclamation or travel ban? Did the travel ban itself discriminate under federal immigration law on the basis of national — nationality, or also under the Constitution, on the basis of religion?

    So that’s where we saw the bulk of the questions go to both lawyers who argued today.

  • Judy Woodruff:

    So, we do have an audio excerpt from the court. You were just reminding me that these are released typically at the end of a week, but, in this case, because this is a big one that everybody is looking at, they released it today. It was shortly after…

  • Marcia Coyle:

    Yes, a lot of interest in this case.

  • Judy Woodruff:

    So, this is an excerpt of Justice Kennedy asking questions of Noel Francisco, representing the Trump administration.

  • Justice Anthony Kennedy:

    Suppose you have a local mayor and, as a candidate, he makes vituperative hate — hateful statements, he’s elected, and, on day two, he takes acts that are consistent with those hateful statements.

    That’s — whatever he said in the campaign is irrelevant?

  • Noel Francisco:

    Your — Your Honor, if he takes the same oath…

  • Justice Anthony Kennedy:

    You would say whatever he said in the campaign is irrelevant?

  • Noel Francisco:

    I would say yes, because we do think that oath marks a fundamental transformation.

    But I would also say, here, it doesn’t matter, because, here, the statements that they principally rely on don’t actually address the meaning of the proclamation itself.

    This is not a so-called Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine , since not only does it exclude the vast majority of the Muslim world. It also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.

  • Judy Woodruff:

    So, Marcia, what’s the significance of that exchange?

  • Marcia Coyle:

    Judy, the president’s campaign statements, his postelection statements and his tweets on Twitter have focused a lot in the lower courts as they try to determine whether this travel ban’s real purpose or motivation is animus towards Muslim countries, not national security concerns or foreign policy concerns.

    Mr. Katyal, Neal Katyal, who was representing the state of Hawaii here and the challengers to the travel ban, would said, hey, these statements are relevant to making that decision as to whether the travel ban, how — what is the real motivation behind the travel ban.

    What weight the court gives to those statements, we don’t know yet. Some judges have felt you shouldn’t look at them, that campaign statements are campaign statements.

    But those — there are other judges who feel that you have to look at them in order to determine whether there was animus at work here.

  • Judy Woodruff:

    Yes. And, I mean, they got right to it, because at one point, Justice Kennedy was saying, so you’re saying whatever he said in the campaign is irrelevant?

  • Marcia Coyle:

    Solicitor General Francisco is basically saying, yes, it is irrelevant, because you look — first, you look at the text of the proclamation, and then also you realize that government officials take an oath to defend and protect the Constitution, and they are not going to issue this as a result of discrimination or animus.

  • Judy Woodruff:

    So, now we have another excerpt.

    Now, this is Justice Alito questioning Neal Katyal, who, as you pointed out, is the attorney representing the state of Hawaii, challenging the travel ban.

    Let’s listen to this one.

  • Justice Samuel Alito:

    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.

    So, you — it seems to me the list creates a strong inference that this was not done for that invidious purpose.

  • Neal Katyal:

    Justice Alito, I think if it were just the list, I think we’d be right — you’d be right.

    This is a ban that really does fall almost exclusively on Muslims, between 90.2 percent to 99.8 percent Muslims. But even then, we wouldn’t be here if it weren’t for all of the different statements.

    And the best evidence of this about what a reasonable, objective observer would think is to look at the wide variety of amicus briefs in this case from every corner of society.

  • Judy Woodruff:

    So, significance of this one?

  • Marcia Coyle:

    Well, we’re right back to the president’s statements and tweets.

    Mr. Katyal also pointed out how, post-election, President Trump retweeted three very virulent anti-Muslim videos. And he responded to additional questions along the line of — from the chief justice, now, is there any kind of statute of limitations on what a president says, or is the effect of these campaign statements forever?

    And Mr. Katyal said, the president could have repudiated the statements he made, but he never did. He embraced them, and that is further evidence of animus.

    Judy, there also is a very serious question and exchange throughout the arguments about the power and authority of the president.

    You had Justices Sotomayor and Ginsburg saying, Congress has set out a scheme to deal with these sorts of situations. Congress makes immigration laws. Justice Sotomayor asked, what gives the president the authority to do more than what Congress has said is adequate?

    And Mr. Francisco, the government’s lawyer, said that the president has the authority under immigration law to supplement what Congress did.

    Mr. Katyal says, he didn’t supplement. He has supplanted what Congress does. And Congress uses carrots, not sticks. No other president, according to Mr. Katyal, in the last 100 years has enacted such a broad ban on entry into the United States.

  • Judy Woodruff:

    So, Marcia, some of the — or much of the commentary coming after the courtroom arguments today was that, well, the justices seemed — the majority of them seemed to be leaning in favor of the government.

    We know that you can never predict based on this. You have told us that 100,000 times, but what did you hear today?

  • Marcia Coyle:

    It seemed as though certain justices were more sympathetic to the government. Justice Alito seemed that way.

    You might take some of the chief justice’s questions that way as well, whereas justices more on the liberal end of the bench were more sympathetic to Mr. Katyal.

    But I will say this, Judy. I think it’s very — it could be a very close decision. I don’t predict someone like Justice Kennedy, who has a real concern about religious discrimination throughout his jurisprudence. So, I think it will be very close. Maybe that’s what I will rest on, a very close decision.

  • Judy Woodruff:

    All right, we have you on the record, Marcia Coyle. It’s going to be close.

    (LAUGHTER)

  • Marcia Coyle:

    It’s going to be close.

  • Judy Woodruff:

    Marcia Coyle of “The National Law Journal,” thank you.

  • Marcia Coyle:

    My pleasure, Judy.

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