Posted on April 26, 2018

Conservative Justices Rebut ‘Muslim Ban’ as Trump’s Travel Limits Reach Supreme Court

Stephen Dinan, Washington Times, April 25, 2018

The Supreme Court gave President Trump’s travel limits a far more favorable hearing Wednesday than it has received in most lower courts, with conservative-leaning justices actively rebutting charges that the latest version of the president’s policy is the “Muslim ban” that critics contend.


{snip} Republican-appointed justices … defended the president’s powers and discounted lower courts’ findings of anti-Muslim “animus.”

“If you look at what was done, it does not look at all like a Muslim ban,” declared Justice Samuel A. Alito Jr.


“If it were, it would be the most ineffective Muslim ban that one could possibly imagine,” [Solicitor General Noel Francisco] said, pointing out that Mr. Trump’s policy doesn’t cover 45 of the world’s 50 majority-Muslim countries.

Neal Katyal, a former top litigator for the Obama administration who represented the state of Hawaii, Mr. Trump’s opponent in the case, said it wasn’t how many Muslims were left out that mattered, but how many were included. He said up to 99 percent of those affected by the travel ban are Muslims.

Even still, he said, Mr. Trump’s plans could be legal — had he not left such an extensive record of disparaging comments about Muslims that taint everything he has done in this area. “We wouldn’t be here if it weren’t for all the different statements,” Mr. Katyal told the court.


Mr. Francisco told the justices that Congress has granted the president broad powers to block entry of anyone he deems a threat. In that respect, he said, Mr. Trump’s ban is broader but fundamentally no different from a Carter administration ban on Iranians or a Reagan administration ban on Cubans.

That claim resonated with Justice Anthony M. Kennedy, a Republican appointee and frequent swing vote. Mr. Trump’s opponents had hoped to win him over.

He said Mr. Trump’s policy compared favorably with the Carter and Reagan proclamations and offered more detail behind the decision-making.

“This is the most detailed proclamation ever issued in American history,” Mr. Francisco confirmed.

Justice Kennedy was also skeptical of Mr. Katyal’s demand that the judges play referee on a president’s national security decisions.


Justice Sonia Sotomayor, though, doubted the thoroughness of the Trump Cabinet’s review and wondered about a president who ordered his team to reach a specific conclusion: “They’ve been told what the outcome of their deliberations must be.”


The travel ban case, formally known as Trump v. Hawaii, was the final one to be argued in person before the justices for this term. A decision is expected at the end of June.