Trump’s tweets front and center as Supreme Court heats travel ban

April 25, 2018 GMT

President Trump’s opponents warned the Supreme Court on Wednesday that if they uphold his travel ban as legal it would blow a giant hole in the law, opening the door to presidents unilaterally stopping chain migration or making other major changes Congress never intended.

The justices also found themselves squarely confronted with the question of whether Mr. Trump’s campaign tweets can be used against him while he’s president, with Neal Katyal, a former Obama administration lawyer leading the case for the Trump opponents saying if only the president would apologize he could have cleaned up much of the mess he’s in.

“If you accept this order you’re giving this president a power no president has ever exercised,” Mr. Katyal said.

But Solicitor General Noel Francisco, arguing for Mr. Trump, said previous presidents issued smaller but similar proclamations halting entry from countries such as Iran and Cuba.

He said the president was acting within the powers Congress gave him to suspend entry for people who he deems a danger, and to read anti-Muslim reasoning into Mr. Trump’s decision-making is unfair.

“This is not a so-called Muslim ban,” Mr. Francisco said.

The case stems from Mr. Trump’s efforts to impose a ban on travelers from places he deems a threat.

But legal scholars said the import of the ruling goes well beyond the travel ban.

If the justices rule that Mr. Trump’s campaign statements and later tweets can be used against his policy decisions, then much of his agenda could be crippled because of the plethora of nasty things he’s said since mounting his run for office.

But if the justices instead decide that Mr. Trump, like other presidents before him, is due some deference, particularly on national security or other immigration questions, then it could be a major boost for the president’s sweeping immigration plans.

As it is, activists have challenged nearly every part of Mr. Trump’s immigration framework, including his plans to crack down on sanctuary cities that thwart cooperation with deportations; the phaseout of the Obama-era DACA program, the president’s plans for a border wall and the administration’s multiple decisions to crack down on those in the country under Temporary Protected Status.

Those cases are pending in various lower courts, with the DACA ruling the most likely to reach the high court next.

The travel ban was the final case the justices have on their argument calendar for the 2017-2018 term. For the next two months they’ll meet to release opinions, but won’t hear any new cases in person.

Decisions are expected to be released by the end of June, when the term closes.

The administration is cognizant of how much of Mr. Trump’s claims of power will depend on the justices’ ruling.

“The Constitution and acts of Congress confer on the president broad discretion and authority to protect the United States from all foreign and domestic threats,” said Attorney General Jeff Sessions, in a statement just ahead of the arguments. “After multiple agency heads conducted a comprehensive, worldwide review of foreign governments’ information-sharing practices and other risk factors, President Trump determined this travel order is critical to protecting the American people.”

Wednesday’s case involved the third version of the travel ban.

The original, issued a week after Mr. Trump took office in January 2017, banned nearly all immigration or visits from citizens of seven majority-Muslim countries previously singled out by President Obama and Congress

After the courts blocked that version, Mr. Trump issued an updated policy applying to six countries Iraq was dropped from the original list and more narrowly tailoring those citizens who would be denied entry. The Supreme Court last June allowed some of that second ban to go into place.

Meanwhile, the government at Mr. Trump’s orders did a worldwide study of other countries and came up with a third travel ban policy that changed the list, dropping some of the Muslim-majority countries and adding non-Muslim nations such as North Korea and Venezuela to the ban list.

Lower courts again stepped in, ruling he was still overstepping how bounds. One court said he never gave a good enough justification for the ban, while another court said his campaign statements and subsequent tweets disparaging Muslims meant his actions were the result of animus toward Islam, making the travel ban unconstitutional.

The Supreme Court had allowed the travel ban to take effect, however, even as the courts heard full arguments on the case.