The U.S. Supreme Court today heard arguments in Trump v. Hawaii, a case examining President Trump's third attempt to ban refugees and immigrants from several majority-Muslim countries.
At issue is the president’s power to issue the travel ban and whether the courts can even review a presidential order on immigration that invokes national security; whether the president violated the immigration law’s command against discrimination based on nationality; and whether the travel ban violates the Constitution's ban on religious discrimination.
The justices also questioned what weight should be given to the president’s statements and tweets as evidence that he was motivated by discriminatory attitudes toward Muslims.
Most reporters covering the session found few clues to predict how the court will eventually rule, although they said Justice Anthony Kennedy, a frequent swing vote between the conservative and liberal justices, did seem to struggle with certain aspects of the case. The New York Times described Kennedy’s questions, along with those of Chief Justice John Roberts, as “almost uniformly hostile to the challengers.”
However, as Politico pointed out, Kennedy also seemed “wary of declaring that a president's statements on the campaign trail can't be used to assess his actions.”
Noting that the travel ban has sent a “clarion message of exclusion” around the globe which says that “America’s doors are no longer open to foreign students, scholars, lecturers, and researchers,” the amicus brief (5 MB PDF) filed by ACE on behalf of 33 associations in the case underscored the critical importance to American higher education and the nation that our institutions continue to be perceived as “destinations of choice compared to all others around the globe.” However, it did not directly address the specific issues that animated today’s oral argument.
Background
The administration issued its first travel ban in January 2017, the week after the president’s inauguration, causing mass chaos in airports across the country and launching more than a year of legal back and forth over the issue.
The Supreme Court planned to hear the second iteration of the travel ban in October 2017, but dropped its review after the administration issued travel ban 3.0 Sept. 24, 2017, by Presidential Proclamation 9645 (Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats). The high court agreed in January to take up the new and current ban, which places restrictions of varying degrees on entry to the United States from Iran, Libya, Syria, Yemen, Somalia, North Korea, and Venezuela. Chad was originally on the list but was removed earlier this month, replaced by Sudan.
Although multiple courts have issued preliminary injunctions against travel ban 3.0, it is currently in full force and effect because the Supreme Court granted the government’s request for emergency stays of lower court injunctions pending further review.
A decision in the case is expected by June.