Trump's Statements on Travel Ban Dominate Supreme Court Arguments
"The president could have distanced himself [from his statements and tweets] but instead embraced them," Hogan Lovells partner Neal Katyal, arguing for Hawaii, told the justices Wednesday.
April 25, 2018 at 12:23 PM
4 minute read
President Donald Trump's campaign and post-election statements dominated arguments Wednesday as the U.S. Supreme Court wrestled with the president's power to impose a travel ban on foreign nationals from predominantly Muslim countries.
The justices heard arguments in Trump v. Hawaii before a full courtroom that included some of their spouses as well as White House Counsel Donald McGahn and U.S. Sen. Orrin Hatch, R-Utah.
During the fast-paced arguments, which ran a little more than one hour, the justices, with the exception of Justice Clarence Thomas, who remained silent, focused on the following three concerns:
* The extent of the president's power to issue the travel ban.
Justice Ruth Ginsburg told —U.S. Solicitor General Noel Francisco that she found “worrisome” that the proclamation appears to conflict with Congress' responsibility for making immigration laws. She said that although the law allows the president to suspend the entry of certain aliens, that is only for a period until Congress agrees or disagrees.
The travel ban is indefinite. Francisco told her that a time limit would be inconsistent with the immigration statute.
Picking up on Ginsburg's concerns, Justice Sonia Sotomayor said, “What I see the president doing here is saying, 'I'm going to add more to what Congress said.' Where does the president get the authority to do more?”
Francisco pointed to a section of the Immigration and Nationality Act that gives the president authority to supplement the vetting process. “We're talking about the minimum information necessary to determine admissibility,” he said.
But Hogan Lovells partner Neal Katyal, representing Hawaii, countered that the president can “supplement but he can't supplant” what is in the law.
Trump is seeking to do more than any president has done in more than 100 years, Katyal argued. If the court accepts the government's view of the president's power, he will be taking an “iron wrecking ball” to the statute, Katyal said.
* What weight should be given to Trump's statements and tweets as evidence of discriminatory animus?
Several justices pressed Francisco about the presidential statements. Francisco said the statements were irrelevant and “out of bounds.”
Francisco insisted, “This is not a Muslim ban. If it were, it would be the most ineffective ban,” because it does not include all predominantly Muslim nations.
The Trump administration, in preparing the proclamation, Francisco said, “applied neutral criteria all across the world” to determine whether other nations were providing the information necessary for the United States to determine eligibility for entry into this country. “Most of the world,” he said, “was fine.”
Neal Katyal
Chief Justice John Roberts Jr. asked Katyal if there is a “statute of limitations” on the president's statements or is the effect to last throughout the administration's life or forever.
Katyal said the court should apply the reasonable observer test, and he pointed to “three virulent” anti-Muslim videos that Trump retweeted after issuing the ban.
“The president could have distanced himself [from his statements and tweets] but instead embraced them,” Katyal said. He told Justice Samuel Alito Jr., who said the ban's text did not look like a Muslim ban to a reasonable observer, to look at all the circumstances.
“If it were just a list [of countries] you would be right,” Katyal said. “This is a ban that does fall almost exclusively on Muslims. We wouldn't be here if it weren't for [Trump's] statements.”
* What about nationwide injunctions?
Justice Neil Gorsuch asked Katyal what the court should do about this “really new development” of judges issuing nationwide injunctions, as happened to the travel ban.
Katyal stressed that the travel ban is an immigration case and immigration law must be uniform. “Getting into [nationwide injunctions] here doesn't make sense,” he told Gorsuch.
The Sept. 27 ban originally applied to eight countries: Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela. Chad was recently removed from the list and replaced by Sudan. The challengers have not appealed the ban's application to North Korea and Venezuela.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All4th Circuit Upholds Virginia Law Restricting Online Court Records Access
3 minute read'Where Were the Lawyers?' Judge Blocks Trump's Birthright Citizenship Order
3 minute readRFK Jr. Will Keep Affiliations With Morgan & Morgan, Other Law Firms If Confirmed to DHHS
3 minute readTrending Stories
- 1No Two Wildfires Alike: Lawyers Take Different Legal Strategies in California
- 2Poop-Themed Dog Toy OK as Parody, but Still Tarnished Jack Daniel’s Brand, Court Says
- 3Meet the New President of NY's Association of Trial Court Jurists
- 4Lawyers' Phones Are Ringing: What Should Employers Do If ICE Raids Their Business?
- 5Freshfields Hires Ex-SEC Corporate Finance Director in Silicon Valley
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250