In oral arguments before the Supreme Court on Wednesday over the constitutionality of President Donald Trump’s executive order limiting visas for several Muslim-majority countries, the two justices of the most progressive bent drilled into Solicitor General Noel Francisco about Trump’s tweets and campaign statements and whether the statements should be taken into account as they determine whether Trump was motivated by racism or national security concerns.
The September 2017 executive order at the center of Trump v. Hawaii resembles but is not identical to the two preceding orders. The January 2017 order imposed a 90-day ban on the entry of citizens from seven Muslim-majority countries – Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen – while placing a 120-day hold on the admission of refugees, with an exception for refugees who were religious minorities in their home countries. When federal courts barred implementation of the order, the administration issued a revised order in March 2017 that imposed a 90-day ban on the entry of citizens from six of the seven Muslim-majority countries included in the January order (Iraq was de-listed) and suspended the entry of refugees for 120 days, this time without any exceptions for religious minorities.
On Wednesday, Justice Elena Kagan -- an Obama appointee -- asked Francisco whether he could imagine an “out-of-the-box” President campaigning as “vehement anti-Semite” who would stoke “hatred of Jews” during his tenure and who demands that his staff issue an order banning immigration from Israel.
In response, Francisco said that if that fictive president’s cabinet came aired legitimate national security reasons to ban Israelis from entering the country, that president would legally be allowed to do so, “even if in his private heart-of-hearts he harbors animus.” The solicitor general said that Trump’s executive order is nothing like that hypothetical case she cited, noting that the executive order was the product of “a neutral baseline applied to every country in the world.”
Another Obama-appointee, Justice Sonia Sotomayor, said she wanted to speak of “something that’s been bothering me,” and presented Francisco with the hypothetical anti-Semitic president, again. Offering her legal fiction, Sotomayor said to Francisco, “The President is the head of the Executive Branch, and can hire and fire anyone he wants, and create the policies he wants. So if he says, ‘I want to keep out the Jews, period,’ why wouldn’t the actions of his cabinet not be subject to suspicion and review?”
Sotomayor said that even if the presidential cabinet goes through a legitimate process to issue the executive order on issuing visas from specified countries, she said “they were basically told what the outcome of their deliberations should be.”
Francisco reminded her that all cabinet members are sworn to uphold the Constitution, gave his assurances that they would refuse to carry out such a blatantly unconstitutional order from that imaginary president . “That’s the check” on the President’s power, Francisco said, before saying that in Trump, “you don’t have anything like that.”
Kagan then asked Francisco if in fact Trump’s campaign rhetoric and since taking office amounts to anti-Muslim sentiment. Francisco said that Trump statements on the campaign trail should not be considered because Trump aired them as a “private citizen” who had not yet been subjected to the “fundamental transformation” of the oath of office.
Justice Anthony Kennedy, a usual swing vote, voiced skepticism while asking if campaign statements might still be “irrelevant” if the President acts on them “on day two.” Trump issued the first iteration of his executive order limiting the issuance of visas of certain Muslim-majority countries just days after taking office. Other members of the court also asked Francisco whether campaign statements are material in the case if the candidate in question is already holding elected office, such as a mayor seeking a seat in the U.S. Congress.
Chief Justice John Roberts and Justice Samuel Alito appeared to be worried that ruling in favor of the administration’s challengers may burden courts with second-guessing the president’s national-security concerns. Roberts asked the challengers’ attorney, Neal Katyal, to imagine a scenario in which intelligence agencies inform the president that 20 Syrians plan to enter the country with chemical weapons. The justice asked whether the president can ban all Syrians from coming to the United States.
Katyal said that the president would be able to do so, reasoning that would not be discrimination on the basis of nationality, which immigration laws prohibit, but instead would be a response to an emergency. However, he argued that the president’s first executive order restricting entry into the United States was issued 460 days ago, and the president has never asked Congress to act.
Justice Samuel Alito expressed skepticism that by putting aside the president’s tweets and statements about a Muslim ban that the September 2017 order is indeed a “Muslim ban.” Pointing out that there are dozens of Muslim countries, Alito noted that the order only includes five of them, which together comprise a small percentage of the world’s Muslims. He also noted that the countries’ failure to share information, among other reasons, leads to a presumption that the order was not discriminatory.