90 Miles From Tyranny : Supreme Court Travel Ban Arguments Suggest Win for Trump Likely

Friday, April 27, 2018

Supreme Court Travel Ban Arguments Suggest Win for Trump Likely

Finally, the Supreme Court has heard the arguments on the travel ban case.

On Wednesday, there were plenty of protesters outside the courthouse, a few politicians inside the courthouse (including White House counsel Don McGahn, Sens. Orrin Hatch and Mazie Hirono, and Rep. Bob Goodlatte), and even a celebrity (Lin-Manuel Miranda) as two seasoned litigants took their turn at the podium to argue the long-awaited travel ban case.

And while it is difficult to say with any precision how the case will come out, it seemed that among the justices, a majority (perhaps a bare majority) appeared to be leaning the government’s way.

The case involves the legality of the third iteration of President Donald Trump’s so-called travel ban in which the president has, at least temporarily, suspended the admission of individuals from seven countries—Syria, Iran, Libya, Yemen, Somalia, North Korea, and Venezuela—subject to case-by-case waivers. Two countries—Iraq and Sudan—that had previously been on the list were subsequently dropped, and a third country—Chad—was dropped earlier this month.

The Trump Administration’s Argument

The proclamation itself explains the process the administration went through in determining which countries to include on the list. It describes how the secretary of the Department of Homeland Security created a baseline of criteria for countries to meet and measured nearly 200 countries against that baseline.

At the end of this process, 16 countries were found to be deficient, and 31 countries were “at risk.” This began a period of engagement with each of those governments to address these deficiencies, after which the final list was compiled.

The proclamation also explains the reasons why the remaining countries are still on the list. They share some combination of the following characteristics: some are state sponsors of terrorism, some are safe havens for terrorists, some refuse to cooperate with us, and some lack the institutional capacity to cooperate effectively with us. As Solicitor General Noel Francisco, arguing on behalf of the administration, put it Wednesday:
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. The proclamation adopts those recommendations. It omits the vast majority of the world, including the vast majority of the Muslim world, because they met the baseline. It now applies to only seven countries that fall below that baseline or had other problems, and it exerts diplomatic pressure on those countries to provide the needed information and to protect the country until they do.

Francisco also argues that Congress has given the president all the authority he needs to issue this order through Section 1182(f) of the Immigration Act, which provides:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Travel Ban Opponents’ Argument

The challengers, represented by former acting Solicitor General Neal Katyal, claim that, in issuing his proclamation, the president exceeded his authority under the Immigration and Nationality Act and that his proclamation violates the Establishment Clause of the Constitution because it was motivated, not for national security reasons, but rather by a desire to exclude Muslims from this country.

In terms of his statutory argument, Katyal argued that...Read More HERE

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