By Robert Barnes,
The Supreme Court on Friday said it will review whether President Trump has the authority to ban travelers from certain countries in the name of national security, and will rule by June in what will be a major examination of the president’s powers.
The court will consider the third iteration of Trump’s travel ban, issued last fall, which bars various travelers from eight countries, six of them with Muslim majorities.
Lower courts have struck down each version of the Trump administration restrictions, dating back to those issued in his first week in office, but the Supreme Court has yet to rule on the extent of the president’s authority.
Solicitor General Noel J. Francisco said it was time for the high court to recognize the vast authority the president wields when the nation’s security is at stake.
“The courts below have overridden the president’s judgments on sensitive matters of national security and foreign relations, and severely restricted the ability of this and future presidents to protect the nation,” Solicitor General Noel J. Francisco wrote in his petition to the court.
Challengers to the ban — in this case, the state of Hawaii and others — say Trump has exceeded his legal authority in banning travelers from certain nations.
“No prior president has attempted to implement a policy that so baldly exceeds the statutory limits on the president’s power to exclude, or so nakedly violates Congress’s bar on nationality-based discrimination in the issuance of immigrant visas,” said Hawaii’s brief asking the court to let lower court decisions stand.
But there are indications that the Supreme Court will be more sympathetic to the administration’s claim that the president has extraordinary powers if acting to keep the nation safe.
Last month, in an unsigned opinion, the justices said the restrictions in Trump’s latest version of the ban could go into effect as envisioned while legal challenges to the merits of the decision continued.
That decision, which included noted dissents only from liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor, in effect discarded a compromise the justices fashioned regarding the second version of the plan. That compromise said the ban would not affect those who could prove significant connections to the United States.
The current version of the plan imposes various restrictions on travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. The first six of those countries have Muslim-majority populations, and the restrictions on travelers from North Korea and Venezuela are not part of the challenge.
The court will review a unanimous ruling from a three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco. It said the third version of the travel ban suffered from the deficiencies of the first two: that Trump had again exceeded his lawful authority and that he had not made a legally sufficient finding that entry of those blocked would be “detrimental to the interests of the United States.”
There is a another challenge to the ban still resting with the U.S. Court of Appeals for the 4th Circuit in Richmond. That full court is considering a ruling by a Maryland judge that the ban violates the Constitution because it is effectively a ban on Muslims. Judge Theodore D. Chuang considered Trump’s statements and tweets in reaching his decision.
Despite a nudge from the Supreme Court last month to work quickly, the 4th Circuit has yet to rule. The case could be added for the Supreme Court’s consideration later.
Trump’s moves on the issue have been controversial from the start. A hastily issued executive order just a week after the inauguration — it targeted travelers from seven Muslim -majority countries — caught immigration officials by surprise and caused chaos and protests here and abroad. Courts stopped it.
That order was replaced by a second version, which barred entry by nationals of six overwhelmingly Muslim countries for 90 days, excluded all refugees for 120 days, and capped annual refugee admissions at 50,000.
Courts put that order on hold as well. That is when the Supreme Court fashioned the compromise that said the ban to go into effect, but allowed in those with a significant connection to the United States, such as family members or a waiting job or study opportunity.
The justices were scheduled to decide the merits of that ban last fall. But the order expired before oral arguments, and the administration replaced it with the third order.
Whatever the shortcomings of the first two orders, Francisco told the court, the third followed a painstaking review process of travelers from other countries to determine which did not have procedures in place to screen out those who might intend to harm the United States.
The eight countries named in the current ban “do not share adequate information with the United States to assess the risks their nationals pose, or they present other heightened risk factors,” Francisco wrote.
“Whereas prior orders of the president were designed to facilitate the review, the [current] proclamation directly responds to the completed review and its specific findings of deficiencies in particular countries.”
Hawaii argued that the current ban is worse than the previous, because it is permanent unless the administration takes some action to amend it.
“The president has issued a proclamation, without precedent in this nation’s history, that purports to ban over 150 million aliens from this country based on nationality alone,” said Hawaii’s brief to the court, written by Washington lawyer Neal K. Katyal.
“The immigration laws do not grant the president this power: Congress has delegated him only a measure of its authority to exclude harmful aliens or respond to exigencies, and it has expressly prohibited discrimination based on nationality.”
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