The travel ban set to go before the Supreme Court is a significantly scaled-back version of the one President Donald Trump signed a week into his presidency. | J. Scott Applewhite/AP Photo Supreme Court appears split on Trump’s travel ban Frequent swing Justice Anthony Kennedy seemed to struggle with aspects of the case.

The Supreme Court seemed divided on whether President Donald Trump's controversial travel ban violates federal law or the Constitution when the legal battle over the issue reached the high court Wednesday, nearly 15 months after the policy's first iteration kicked in and sparked angry protests at international airports across America.

The oral argument session offered no clear indication of how the court will rule. Frequent swing Justice Anthony Kennedy appeared to struggle with aspects of the case. He expressed concerns about second-guessing the president's response to national security threats but also seemed wary of declaring that a president's statements on the campaign trail can't be used to assess his actions.


The directive that went before the justices Wednesday is a version of the one that Trump signed a week into his presidency, triggering outrage over what critics decried as the “Muslim ban” Trump repeatedly promised during his 2016 campaign.

The policy — which the Trump administration says is critical for national security, but which critics say discriminates on religious grounds — initially cut off virtually all visits to the U.S. by citizens of seven majority-Muslim countries. The restrictions were subsequently scaled back due to a series of setbacks in the courts, as well as pressure from Congress, the military and U.S. allies.

A central question at Wednesday's arguments was how willing the justices were to engage in a discussion about Trump’s motives when crafting the policy and how his campaign-trail rhetoric about barring Muslims from entering the U.S. should factor into the legality of his policies.

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Defending Trump's policy, Solicitor General Noel Francisco told the justices that any comments a president makes before taking office should be disregarded because he hasn't yet taken his oath of office.

"Those statements should be out of bounds," Francisco insisted.

Kennedy seemed skeptical.

"Suppose you have a local mayor, and as a candidate, he make vituperative, hateful statements. He is elected, and on day two, he takes acts that are consistent with those hateful statements," Kennedy said. "What he said in the campaign is irrelevant?"

Francisco insisted that the current travel-ban policy is not a follow-up to anything Trump said about Muslims during the campagn.

"This is not a so-called ‘Muslim ban.’ If it were, it would be the most ineffective Muslim ban that one could possibly imagine," Francisco said, noting that it currently applies to only a handful of majority-Muslim countries and that several have been dropped.

Most of the Republican-appointed justices seemed inclined to allow Trump's order to stand. The Democratic appointees appeared to be divided into two camps, with Justices Stephen Breyer and Elena Kagan seeming to seek some kind of middle ground, while Justices Ruth Bader Ginsburg and Sonia Sotomayor appeared more convinced that Trump's order went too far.

Chief Justice John Roberts asked how long Trump or any president should be saddled with legal responsibility for his campaign-era comments.

“Is there a statute of limitations on it?” Roberts asked.

The lawyer challenging the ban, Neal Katyal, said the easiest thing would be for the president to repudiate his earlier comments, which Trump has not done.

“The president could have disclaimed, easily moved away from all these statements," Katyal said. "Instead, he’s embraced them.”

The Trump administration says its travel restrictions will improve national security, partially by excluding potentially dangerous foreigners, although that argument has been undermined by a series of exemptions and limits placed on the initial ban. Now, Justice Department lawyers and Department of Homeland Security officials have shifted their focus to how the travel restrictions encourage foreign governments to be more cooperative with U.S. efforts to vet potential visitors.

The first version of Trump's policy banned travel to the United States by nationals of seven majority Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order prompted widespread confusion, particularly over its application to green card holders from those countries. Courts quickly blocked the order's impact on existing visa holders and eventually put the key part of the travel ban on hold worldwide.

Trump appealed that injunction to the 9th Circuit Court of Appeals, which refused to revive the policy. The administration chose to redraft the ban rather than appeal to the then-shorthanded Supreme Court.

A revised order issued in March 2017 deleted Iraq from the banned list, in part due to military and congressional protests, as well as complaints from Iraqi officials about targeting a country key to U.S. efforts to wipe out the Islamic State. Those who already held visas and people with green cards were explicitly exempt.

Federal judges in Hawaii and Maryland blocked the key parts of that version of the ban as well, accepting arguments that Trump exceeded his authority. Appeals courts upheld those rulings.

When the Trump administration took the issue to the Supreme Court, seeking an emergency order to implement the ban, the justices fashioned a compromise. The Trump administration won the right to implement the ban, but a six-member majority of the court forced officials to exempt foreigners with family ties to the U.S. or connections to business or educational institutions here.

In the June ruling, three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — said they would have allowed the entirety of Trump’s travel ban to take effect while the court considered the case.

Trump revised the ban for a third time last September, ordering tailored restrictions on eight countries. The president dropped one majority Muslim country, Sudan, from the earlier list and added another largely Muslim nation, Chad, along with Venezuela and North Korea. Some of the restrictions affected nearly all travel, while others were more limited. Critics said the addition of Venezuela and North Korea was a transparent effort to obscure the anti-Muslim thrust of the overall policy.

While lower courts ruled against the ban, the Supreme Court allowed the third version of the travel ban to go fully into effect in December pending the outcome of litigation. This time, the court split, 7-2. Ginsburg and Sotomayor said they would have left in place the earlier compromise exempting those with bona fide ties to the U.S.

There has since been one significant change to the most recent ban: Chad was taken off the restrictions list earlier this month. Officials said the country was providing greater cooperation with U.S. anti-terrorism efforts, but there were signs that the country’s inclusion was the result of bureaucratic foul-ups.

The arguments Wednesday — the final such session of the court's current term — drew many of Washington’s legal luminaries, including Sen. Orrin Hatch (R-Utah) and several top Justice Department lawyers. White House Counsel Don McGahn was on hand and happened to be seated next to Justice Thurgood Marshall’s widow, Cecilia.

During the arguments, Kagan questioned Francisco about a hypothetical president who makes openly anti-Semitic remarks and whether that president would be able to bar people from Israel from entering the U.S.



“This is an out-of-the-box kind of president in my hypothetical,” she said, to some chuckling in the usually staid courtroom. “And who knows what his heart of hearts is.”

Francisco suggested that an avowedly anti-Semitic president could issue an order banning travel from Israel, as long as the president’s advisers came up with legitimate reasons for it.

“I think the president would be allowed to follow that advice, even if in his heart of hearts he harbored animus,” the Trump administration lawyer said.

A federal law gives the president the power to block entry to the U.S. by certain "classes" of foreigners for "such period as he shall deem necessary," but Katyal argued that the open-ended nature of Trump's order violates that provision and amounts to an effort to rewrite immigration law without Congress's consent.

Kennedy suggested it was ridiculous to think that the president could know in advance how long a national security danger might last.

"So you want the president to say, I'm convinced that in six months we're going to have a safe world?" the Reagan appointee asked.

Kennedy also seemed to chafe at the idea that judges should assess the gravity of national security threats.

"Your argument is that courts have the duty to review whether or not there is such a national exigency; that's for the courts to do, not the president?" Kennedy said.

Katyal insisted he was not thrusting courts into that role but said Trump had identified no emergency to which he was responding with the travel-ban policy.

Justice Department lawyers defending Trump’s orders in lower courts urged that judges look only to the contents of his directive, but Francisco said Wednesday the justices could look at other statements and actions. That may let the administration argue that the involvement of officials like the secretary of homeland security and the attorney general in more recent versions of Trump’s orders bolster their legal legitimacy.

But Justice Sotomayor questioned whether Cabinet officials could perform an objective national security review under a president who had expressed racial animus.

The Cabinet would be “duty-bound to protect and defend the Constitution,” Francisco responded, adding that “here, however, you don’t have anything like that.”

Ginsburg said early in the argument that she believed Trump had overrun Congress's prerogatives. “The worrisome thing about this is the president acts—Congress is supposed to be making the laws about immigration,” she said.

Breyer appeared to focus almost exclusively on the waiver provisions in the current version of the ban. He said it was not clear whether the provisions allowing issuance of visas in some compelling circumstances were being widely applied or whether the language was mere "window dressing."

"Is it well publicized in these countries that they know all they have to do is go to the visa office and say, 'I understand the thing, I want an exception?'" he asked.

Francisco said about 430 such waivers have been granted, but he said the order would be valid even without such a work-around.

