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At the U.S. Supreme Court today, there were intense arguments over President Trump's travel ban and strong signals that the conservative majority is leaning towards upholding the ban. This is the third version of the president's executive order. It bars virtually all citizens from five mainly Muslim countries from entering the United States. North Koreans and Venezuelan government officials are also banned.
Because of the importance of the case, the Court allowed same-day audio of the proceedings to be released. That hasn't happened since 2015 after the landmark arguments on same-sex marriage. NPR legal affairs correspondent Nina Totenberg takes us into today's proceedings.
NINA TOTENBERG, BYLINE: At exactly 10 o'clock, the justices emerged from behind the red velvet drapes in the court chamber to take their seats. Chief Justice John Roberts looked perky despite having attended the state dinner for the president of France last night, and he was among the justices who seemed most skeptical of the arguments being made by those challenging the travel ban. Just moments after the challengers' lawyer came to the lectern, Roberts posed this hypothetical.
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JOHN ROBERTS: Let's suppose that the intelligence agencies go to the president and say, we have a hundred percent solid information that on a particular day, 20 nationals from Syria are going to enter the United States with chemical and biological weapons. They could kill tens of thousands of Americans. In that situation, could the president ban the entry of Syrian nationals on that one day?
TOTENBERG: Yes, replied lawyer Neal Katyal, because the existing statutes give the president the power to act in emergency situations. Well, Roberts pressed, what about a week or a month? Katyal replied the ban has already been in place for 460 days. Unlike any similar action by other presidents, he said, this ban is open-ended. It's perpetual. At that, Justice Kennedy, often the deciding vote in closely contested cases, intervened.
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ANTHONY KENNEDY: I thought it had to be re-examined every 180 days.
NEAL KATYAL: No, that's not what it says. It says there's a report that has to come in at 180 days, and nothing happens at the end of the report.
KENNEDY: That indicates there'll be a reassessment.
KATYAL: Again, we wouldn't have a problem with that if it was tailored to a crisis, says it sunsets, and then, you know, could be re-upped or something like that. That's not what this says. This is about a perpetual problem.
KENNEDY: So you want the president to say, I'm convinced that in six months, we're going to have a safe world.
TOTENBERG: Katyal remained on the defensive. Justice Alito said the executive order did not look like a Muslim ban to him. And even Justice Kagan, one of the court's liberals, noted that courts don't like to second-guess the president on national security because courts don't feel equipped to make such judgments.
Katyal pounded back, noting that Congress has exclusive power to regulate immigration under the Constitution, and it's done that with a series of carefully calibrated measures, including a provision that for more than a half-century has barred discrimination based on nationality.
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KATYAL: If you accept this order, you're giving the president a power no president in a hundred years has exercised.
TOTENBERG: The executive order, he argued, is nothing more than what the president promised during the campaign. It's a Muslim ban. Chief Justice Roberts...
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ROBERTS: Your argument based on discrimination based on the campaign statements - is there a statute of limitations on that?
TOTENBERG: Yes, replied Katyal, but here, those comments were rekindled by the president and his staff once in office. Indeed he noted that after the president signed the first version of the travel ban, he tweeted three false and virulently anti-Muslim videos. The subject of campaign statements turned out to be the biggest obstacle for Solicitor General Noel Francisco in his defense of the travel ban. Justice Kagan posed this hypothetical.
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ELENA KAGAN: So let's say in some future time, a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency.
TOTENBERG: And let's suppose, she continued, that he orders his staff and his Cabinet to give him recommendations so that he can issue a proclamation.
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KAGAN: And what emerges - and again, in the context of this virulent anti-Semitism - what emerges is a proclamation that says no one shall enter from Israel.
NOEL FRANCISCO: I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.
TOTENBERG: Francisco, however, noted that Israel is one of this country's closest allies, making that scenario hard to imagine.
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KAGAN: This is a out-of-the-box kind of president in my hypothetical, and...
FRANCISCO: We don't have those, Your Honor.
TOTENBERG: This travel ban is nothing like that, said Francisco. There are 50 majority-Muslim countries in the world, and only five of them are on the list of banned countries because they either have not met the minimum standards for allowing the U.S. to screen applications for a visa or are themselves havens for terrorism. Justice Kennedy, however, returned to the problem of campaign statements.
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KENNEDY: Suppose you have a local mayor, and as a candidate, he makes vituperative, hateful statements. He's elected, and on day two, he takes acts that are consistent with those hateful statements. Whatever he said in the campaign is irrelevant.
FRANCISCO: I would say yes because we do think that oath marks a fundamental transformation. But I would also say here, it doesn't matter because this is not a so-called Muslim ban.
TOTENBERG: Wrapping up his argument, Francisco said this.
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FRANCISCO: The president has made crystal-clear on September 25 that he had no intention of imposing the Muslim ban. He has made crystal-clear that Muslims in this country are great Americans, and there are many, many Muslim countries who love this country. And he has praised Islam as one of the great countries of the world.
TOTENBERG: A decision in the travel ban case is expected at the end of June. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
