- President Donald Trump’s previous campaign statements about Muslims were hotly debated during oral arguments at the Supreme Court on Wednesday.
- The justices were considering the legality of Trump’s third travel ban, which imposed travel restrictions on mostly majority-Muslim countries.
- Trump during his presidential campaign frequently called for a “Muslim ban,” but the government lawyer on Wednesday said the travel ban is separate from that campaign promise.
Several Supreme Court justices grilled a government lawyer on Wednesday about President Donald Trump’s statements during the 2016 campaign, demanding to know why Trump’s anti-Muslim remarks should not be considered in their ruling on his controversial travel ban.
The justices heard oral arguments Wednesday morning for the hotly anticipated case, which comes after lower courts struck down two previous versions of the travel ban and attempted to stall the third.
Though a majority of the justices appeared convinced by the Trump administration’s arguments that the travel ban is lawful, they indirectly questioned the Trump administration’s lawyer, Solicitor General Noel Francisco, on whether Trump’s previous calls for a “Muslim ban” were relevant to the case.
Justice Elena Kagan offered up an apt hypothetical scenario of a “vehement anti-Semite” running for president who “provokes a lot of resentment and hatred over the course of a campaign,” and then issues a proclamation barring Israelis from entering the country.
Kagan also remarked at one point that this hypothetical president was an “out-of-the-box kind of president,” prompting snickers from the courtroom gallery.
She went on to ask Francisco whether Supreme Court precedent would bar the justices from considering the hypothetical president’s previous remarks in the context of his proclamation.
Francisco replied that the justices would not necessarily be barred from considering the previous statements, but argued that if the president’s hypothetical Cabinet had presented a legitimate national security risk from the Israelis, he could proceed with the proclamation regardless.
“I think then that the president would be allowed to follow [the Cabinet’s] advice even if in his private heart of hearts he also harbored animus,” Francisco said.
‘This is not a so-called Muslim ban’
Even Justice Anthony Kennedy – who is often considered the swing vote in cases otherwise split along partisan lines – appeared sceptical of the government’s argument.
“Suppose you have a local mayor and, as a candidate, he makes vituperative hateful statements, he’s elected, and on day two, he takes acts that are consistent with those hateful statements,” Kennedy said to Francisco. “Whatever he said in the campaign is irrelevant?”
Francisco argued that he believed the campaign statements would, in fact, be irrelevant because the mayor’s oath of office “marks a fundamental transformation” between a person’s candidacy and their ascent to elected office.
Francisco also addressed the plaintiffs’ arguments that Trump’s travel ban was a version of the “Muslim ban” he promised during his 2016 campaign.
A since-deleted statement on Trump’s campaign website published December 7, 2015 called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
“This is not a so-called Muslim ban,” Francisco said. “If it were, it would be the most ineffective Muslim ban that one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders.”
Trump’s campaign statements and several of his tweets played a major role in previous arguments in lower courts, and the plaintiffs cited them repeatedly in their filings as evidence that the travel ban is motivated by racial animus.