Protesters at the Supreme Court were wrong.
The weak arguments made on Wednesday in the Supreme Court against President Donald Trump’s restrictions on travel from dangerous countries demonstrate that the government should win the case. The justices should rule in favor of upholding the president’s authority to protect national security and the safety of the American public.
It was a rainy, overcast day in the nation’s capital, but that did not stop protesters outside the Supreme Court who were yelling about the so-called Muslim ban, which exists only in their fevered imaginations. The weather also did not deter those attending the arguments inside the courtroom, which was packed with Washington’s media and political elites, including Don McGahn, Trump’s White House counsel, and legislators including Representative Bob Goodlatte, chairman of the House Judiciary Committee. Even Lin-Manuel Miranda, author of the Broadway musical Hamilton, was there.
The justices heard their final oral arguments of the term in U.S. v. Hawaii, the case filed against Trump’s revised proclamation of September 24, 2017. That proclamation was issued after an intensive, multi-agency review applied to 200 countries. The Department of Homeland Security recommended that entry be restricted from eight countries that, as Noel Francisco, the solicitor general, told the Court, “failed to provide the minimum baseline of information needed to vet their nationals.”
The countries included Iran and Syria, state sponsors of terrorism; Libya, Yemen, Chad, and Somalia, which have extensive terrorist activities inside their borders; and two non-Muslim countries, North Korea and Venezuela.
Francisco put on a very strong case on behalf of the government. He relied heavily on a straightforward provision of federal immigration law, whereby Congress gave the president the power to “suspend the entry of all aliens or any class of aliens” if he finds that their entry “would be detrimental to the interests of the United States.” As Francisco argued, “the proclamation reflects a foreign-policy and national-security judgment that falls well within the president’s power” under this federal law.
The solicitor general argued against the courts’ getting involved in this, since “the whole vetting system is essentially determined by the executive branch. It’s up to the executive branch to set it up. It’s up to the executive branch to maintain it. And it’s up to the executive branch to constantly improve it.” He pointed out that prior presidents, Carter and Reagan, used this law to restrict entry from Iran and Cuba, and Justice Anthony Kennedy noted that Trump’s proclamation contains more detail on the specifics of the grounds for the restrictions than did those prior presidential proclamations.