VOA News/Aline Barros
SUPREME COURT — After an intense oral argument over President Donald Trump’s travel ban Wednesday, the U.S. Supreme Court is expected to answer in June whether or not the executive order exceeded the authority the president has over immigration.
The challengers in Trump v. Hawaii have said that Congress created a system of laws that address the security concerns the president addressed in his executive order limiting travel from certain countries. Solicitor General Noel J. Francisco told the justices the president is “well within his power” to issue the proclamation after a “worldwide multi-agency” review.
“The president’s acting Homeland Security Secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals,” Francisco explained.
Neal Katyal, arguing on behalf of the respondents, said the executive order is unlawful because it conflicts with laws set by Congress, violates the first amendment, and “defies the bar on nationality.”
“Congress has already specified a three-part solution to the very same problem the order addresses. … Aliens have to go through the individualized vetting process … When countries cooperated, they’d get extra credit, a track — faster track — for admission. … Congress was aware circumstances could change on the ground, so it required reporting to them so it could change the law,” Katyal said.
The nine justices will try to answer four questions on their upcoming June ruling: Did the president act within his authority under the Immigration Nationality Act? Does the proclamation violate the First Amendment’s Establishment Clause which prohibits the government from favoring one religion over another? Can the federal courts hear the plaintiffs’ case? Did the lower courts make a mistake in issuing a nationwide injunction?
If the court does decide in favor of the government in June, it would be a big boost to the Trump administration’s efforts to cut down legal immigration.
The back and forth
Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy appeared to be leaning toward upholding President Donald Trump’s travel ban limiting travelers from mostly Muslim-majority countries — Iran, Libya Syria, Somalia and Yemen, as well as from North Korea and Venezuela —from coming to the U.S.
Either Roberts or Kennedy would have to join the court’s liberal contingent to find the ban unconstitutional.
Some of Kennedy’s comments gave the impression of supporting Trump’s ban when he talked about the part of the immigration act that says the president can ban certain aliens for a period “as he deems necessary, and he can have continuing supervision over whether it’s still necessary.”
“We wouldn’t have a problem with that if it was tailored to a crisis,” Katyal said, “That’s not what this says. This is about a perpetual problem.”
To which Kennedy replied “So you want the president to say, I’m convinced that in six months we’re going to have a safe world?”
“Well, no, Justice Kennedy, that’s not our argument. Our argument is the president is identifying something that is a perennial problem,” Katyal said, adding the argument of countries not cooperating with the U.S. goes back 100 years.
“And the solution has always been for Congress not to have a flat ban but instead to have a fine-grained vetting system to balance these considerations,” he said.
Outside the court
Since taking office, Trump has issued three versions of his travel ban. The previous two versions were temporary. The current ban has no expiration date.
The so-called travel ban spent most of last year in and out of courts where its legality was called into question by immigration advocates who say the ban amounts to a Muslim ban.
But the government argues the order is not a ban on Muslims since it says there may be case-by-case waivers when appropriate in individual circumstances.
Solicitor General Francisco said in court that if people meet the criteria for a visa waiver, then they would not be denied a visa entry to the U.S.
But the waiver program did not help Yasi’s parents visit when she was expecting a daughter. Yasi was outside the court with her eight-month-old child and did not want to share her last name.
She is a student from Iran at George Washington University whose parents tried to apply for a nonimmigrant visa recently at the U.S. Embassy in Abu Dhabi but were denied.
“This (travel ban order) was really stressful. … We didn’t know at first what’s going to be for us, and how is going to affect our lives. After that, I got pregnant,” she said.
She has been living in the U.S. since 2012 and has not seen her parents since. Yasi fights tears when she tells about it.
“It’s not fair. … You know you’re not going to see your parents. They can’t come visit. They can’t come visit (my) child. It’s not easy at all,” she told VOA.
Liberal Justice Stephen Breyer questioned the waiver program, citing complaints from families, the business and academic community, and people seeking medical treatment who have been denied entry.
Without offering a time frame, Francisco said the most current number on waivers is about 400.
“All right. That’s 400 out of 150 million (people),” Justice Breyer said.
Saying the case was well argued on both sides, Georgetown University Law Center professor Joshua A. Geltzer said the key issue is the president’s power over immigration and whether the travel ban exceeds it.
If the justices were to decide that it does, that would end the case.
“There would be no need to reach the constitutional question and it will be up to the president what he wants to do next. Conceivably he could go to Congress and try to talk about changing the law. Something he hasn’t tried to do a year plus — despite claiming some sort of threat or emergency,” he told VOA.