The Supreme Court heard oral arguments about President Donald Trump’s most recent travel ban on Wednesday. Judging from the transcript, the hearing didn’t go well.
While the court’s liberal justices focused on President Trump’s history of Islamophobia, the conservatives—most importantly, likely swing-vote Justice Anthony Kennedy—seemed to zero-in on whether Trump had the constitutional authority to institute the ban in the interest of national security, regardless of his documented religious biases.
“Is there a statute of limitations on [President Trump’s xenophobic campaign statements]?” conservative Chief Justice John Roberts asked plaintiff attorney Neal Katyal at one point. Or, Roberts’ question implied, was the president permanently precluded from making immigration and national security policy simply because he spent years attacking immigrants?
At a different point in the argument, Solicitor General Noel Francisco drew a line between campaign statements and presidential actions, claiming there is a “fundamental transformation” that takes place before and after someone takes the presidential oath of office.
Justice Roberts later pressed Katyal on whether Trump’s anti-Muslim statements would theoretically prevent him from launching an attack on Syria.
“Does that mean he can’t because you would regard that as discrimination against a majority-Muslim country?” Roberts asked.
Justice Kennedy, meanwhile, seemed less comfortable with the president’s offensive statements, but nevertheless stressed that the travel ban faced biannual reviews and fell well within Trump’s constitutional authority.
“[The 180 review] indicates there’ll be a reassessment and the president has continuing discretion,” Roberts stated.
Justice Samuel Alito noted that Trump’s travel ban only affects a small percentage of the global Muslim population. Therefore, he said “It does not look at all like a Muslim ban,” which is a weird thing to say, considering the ban still overwhelmingly affects Muslims.
While the majority of the justices seemed ready to vote in favor of Trump’s travel ban, the court’s liberal wing used its time to probe the limits of Trump’s authority after his history of racial and religious bigotry.
“This is an out-of-the-box kind of president in my hypothetical,” Justice Elena Kagan said at one point, before asking whether a president who made overtly anti-Semitic statements on the campaign trail could be allowed to then institute a travel ban against people coming from the state of Israel. Would the president’s national security justifications triumph “if in his heart of hearts he harbored animus?” she asked. (Francisco’s answer was, essentially, that in the case of Israel that would never happen with such a close ally).
Justice Sonya Sotomayor, meanwhile, pushed Francisco on whether Trump’s travel ban overstepped some of the already vigorous immigration laws set in place by the legislative branch.
“Where does the president get the authority to do more than Congress has already decided is adequate?” Sotomayor asked.
The verdict on the case (Trump v. Hawaii) is expected to be handed down by late June.