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Supreme Court Oral Argument in Travel Ban Cases

On April 25, the U.S. Supreme Court had its long-awaited oral argument in the travel ban cases, Trump v. Hawaii. Lynne Bernabei and Alan Kabat filed an amicus brief on behalf of 14 civil rights organizations, which argued that the travel ban was the result of illegal stereotyping of Muslims as dangerous. This was evidenced by Trump’s repeated statements, both while campaigning and after becoming President, that Muslims were “bad people” who were to be banned from entering this country. The amicus brief also pointed out that stereotyping of Muslims in this country has occurred since colonial times, with the likes of Cotton Mather and Aaron Burr openly expressing anti-Muslim statements, and the result of this stereotyping was violence against Muslim immigrants, just as stereotyping of other minority groups led to violence against those groups.

Alan was able to attend the oral argument. Although part of the oral argument was spent on the statutory questions – whether the President’s acts exceeded his authority under the immigration laws – the Justices also addressed the broader discrimination and stereotyping issues. Justice Kagan had an interesting hypothetical as to whether a President who was 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,” and then issued “a proclamation that says no one shall enter from Israel.” The Solicitor General, responding for the government, asserted that if the Cabinet had advised the President that there was a security risk, “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.” Justice Kagan then got the Solicitor General to admit that what mattered was what “reasonable observers” would think, “given this context in which this hypothetical President is making virulent anti-Semitic comments.” Here, too, President Trump similarly made anti-Muslim comments, both in his campaign and during his Presidency, before and after the three travel bans. The Solicitor General had to agree with Justice Kagan that “if at the time the President had said we don’t want Muslims coming into this country that would undermine the proclamation.” However, the Solicitor General claimed that statements made during the campaign, prior to taking office, “should be out of bounds.” Justice Kennedy expressed skepticism that “whatever he said in the campaign is irrelevant.”

During the second half of the argument, Neal Katyal, arguing for Hawaii and the other plaintiffs, focused on the discrimination based on nationality and religion. He emphasized that Congress has consistently rejected nationality bans over the past five decades, and that the travel bans were effectively a perpetual ban. He also pointed out that after the third version of the travel ban was announced, “the President tweeted these three virulent anti-Muslim videos,” and when the White House’s press spokesperson was asked about these tweets, the response was “The President has spoken about exactly this in the proclamation.” Further, while “the President could have disclaimed … all of these statements … instead they embraced them.”

A decision is expected by the last week of June 2018.