Solicitor General Noel Francisco, who was making the case for the government, replied that if the administration as a whole agreed, then the court would be obligated to uphold the order. But, he pointed out, that hypothetical isn't the case here.
Kagan slyly responded: let's just say this is an out-of-the-box president.
That prompted outright laughter in the court room.
Francisco held firm, saying that if the Cabinet agrees that there's a national security risk, the court would have to uphold the order.
And he went further, stating that the court would have to do so even if in his heart, the president harbored animus.
Kagan contended that it's not what's in the president's heart of hearts, but what a reasonable observer would interpret.
Kennedy was concerned about that point. He presented a different hypothetical: He asked Francisco, suppose a mayor is elected after a long campaign of hateful statements, then on Day 2 after he's sworn in, he takes action adverse to those he made hateful comments about. Is everything he said during the campaign irrelevant? Kennedy asked.
Francisco asserted, in fact, yes.
But, he added, that the Trump travel ban is not a Muslim ban because it does not apply to most of the Muslim-majority countries in the world, and this latest iteration dropped Sudan, Chad and Iraq when they changed their screening and security to minimum standards.
How we got here
The Trump administration's travel ban reached the Supreme Court posing enormous questions involving the structure of the American government and the values of the country.
At issue is the third version of the ban, which President Trump has complained is a "watered-down" version. The court allowed it to go into effect while the case was litigated, but the lower courts have ruled that all three versions either violate federal law or are unconstitutional.
Like the earlier two bans, version 3.0 bars almost all travelers from mainly Muslim countries, and it adds a ban on travelers from North Korea and government officials from Venezuela.
The questions in the case are the stuff of history:
- Can the courts even review a presidential order on immigration that invokes national security?
- Did the president violate the immigration law's command against discrimination based on nationality?
- And does the executive order violate the Constitution's ban on religious discrimination?
The travel ban argument will be the last of the term, and its importance is not lost on the court. For the first time since the same-sex-marriage arguments in 2015, the court is allowing same-day distribution of the session's audio. Nonetheless, people started lining up at 7 a.m. Sunday in hopes of snagging a seat.
The court will be working under pressure: There are only about two months left in the term and an unusually large number of cases yet to be decided.
Can the court consider Trump's anti-Muslim rhetoric?
At Wednesday's argument, those challenging the ban are being represented by lawyer Neal Katyal, who has argued landmark cases in the Supreme Court both for and against executive power in the context of national security.
"It's unconstitutional. It's unnecessary. And most of all, it's un-American," he said.
But before he can make that case, he will have to deal with the government's first argument — that foreign nationals outside the U.S. have no constitutional rights and no right to litigate in U.S. courts and that the courts have no power to review the president's ban.
The Supreme Court has said on many occasions that when it comes to national security, the executive need only come up with "a facially legitimate, bona fide reason to keep certain people out of our country," said John Malcolm, vice president of the Institute for Constitutional Government at the conservative Heritage Foundation.
In short, the government argues that as long as it gives reasons for the ban, the courts are not to look beyond those reasons to see whether there is evidence to justify them.
"The president gets daily classified briefings," Malcolm said. "Judges do not."
But those challenging the ban note that the Constitution gives exclusive power over immigration to Congress and that in 1965, Congress banned discrimination in immigration based on nationality.
The government contends that the president's order does not discriminate on the basis of either nationality or religion.
But that argument runs up against repeated statements and tweets Trump made during his presidential campaign.
At a 2015 rally, for example, Trump declared, "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States."
Once Trump became president, however, he stopped using such categorical language, while at the same time linking the travel ban to his campaign statements. In February 2017, he castigated a federal judge for blocking the first version of the travel ban. Declaring that he would not back down, the president said, "I keep my campaign promises."
"The president has his intemperate moments," said the Heritage Foundation's Malcolm. "But he has said what we are targeting are not Muslims, but jihadists."
There are 51 majority-Muslim countries and the government maintains that the travel ban is targeting only those that are points of vulnerability, either because they lack the ability to verify the identity and background of those seeking to enter the U.S. or because they have not cooperated with the U.S. government or are "safe havens of terrorism."
"Does the president use the kind of language that plays well in a courtroom? No, I don't think so," Malcolm said. "But it is the president and not the judiciary that is given primary responsibility for protecting our homeland."
Gen. Michael Hayden: "It actually made us less safe"
Making the contrary argument, however, are not just those directly challenging the travel ban, but also an array of former national security experts who have served in Republican and Democratic administrations alike as well as more than two dozen retired top generals and admirals.
In several friend-of-the-court briefs, they argue that the travel ban not only violates American law but also has harmed national security.
"It actually made us less safe," said Gen. Michael Hayden, who served as director of the National Security Agency from 1999 to 2005 and then CIA director from 2006 to 2009.
In an interview with NPR, Hayden said that since the travel ban went into effect, he has gotten calls from CIA officers still in government. They tell him the ban is making it far more difficult to recruit "assets" and spies, making it much harder to get information in the targeted countries — locations that are essential to the fight against ISIS and radical Islam.
The national security experts who have filed briefs in the case opposing the travel ban note that no individual from any of the banned countries — which include Iran, Libya, Somalia, Syria and Yemen — has committed a terrorist act on U.S. soil in the last 40 years.
Hayden added that the U.S. has often had more trouble with Belgium in reporting on jihadis seeking entry to the U.S. than it has had from any of the countries in the ban.
Joining Hayden in signing a series of briefs opposing the travel ban are more than 55 former CIA and deputy CIA directors, counterterrorism chiefs, top diplomats with long records in the Middle East, secretaries of state and the Republican chairman of the 9/11 Commission.
They support the challengers' argument that the president has exceeded his authority in enacting the ban.
This wolf "comes as a wolf"
Expanding on that theme, lawyer Katyal maintained that immigration is exclusively the business of Congress under the Constitution.
"Our founders put Congress in the driver's seat, the exclusive driver's seat in Article I of our Constitution, for a reason," he said.
They were angry about King George III abusing his immigration powers, Katyal said, and they concluded, "These decisions are too important to be left to the decision-making of one man."
But in its brief, the Trump administration counters that Congress has, by statute, given up some of that power.
"Congress has explicitly, by statute, given the president the authority to exclude any aliens or class of aliens when he believes that not doing so would be detrimental to the interest of the United States," Malcolm said.
Katyal argued that no provision of the Immigration and Naturalization Act gives the president the power to override the immigration act's ban on discrimination based on nationality. His brief quotes the late Justice Antonin Scalia in addressing which branch of government can do what.
In a 1988 dissent, Scalia wrote that threats to the Constitution's separation of powers usually come disguised in sheep's clothing. But this wolf, said the justice, "comes as a wolf."
And so it is in this case, too, Katyal said. When you read Trump's executive order and his statements about it, he said, it's clear what they are: "They are wolves coming as wolves."
