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WASHINGTON — President Donald Trump’s travel ban that targets Muslim-majority countries appears likely to survive a legal challenge brought by Hawaii and others.
The U.S. Supreme Court heard oral arguments Wednesday in the highly anticipated Trump v. Hawaii case that stems from a series of presidential executive orders aimed at preventing immigrants and travelers from countries, such as Syria, Yemen and Libya, from coming into the U.S.
While the lower courts have sided with legal challenges saying the ban is discriminatory and a violation of immigration law, key Supreme Court justices John Roberts and Anthony Kennedy indicated that the president has broad power when it comes letting foreigners into the country.
The ban’s challengers almost certainly need one of those two justices if the court is to strike down the ban.
The court is expected to issue a decision in June.
The justices had no shortage of questions for Solicitor General Noel Francisco, who defended the president’s order as “well within” his power — and for Neal Katyal, who represented Hawaii’s claims that the president’s actions were overly broad and clearly meant to discriminate against Muslims based on Trump’s own statements both during and after his 2016 campaign.
Kennedy challenged Katyal about whether the ban would be unending. He said the policy’s call for a report every six months “indicates there’ll be a reassessment” from time to time.
“You want the president to say, ‘I’m convinced that in six months we’re going to have a safe world,'” Kennedy said, seemingly rejecting Katyal’s argument.
Other conservative justices latched onto the idea that Congress had granted the president broad authority when it comes to allowing people into the country.
Justice Samuel Alito in particular noted that the current ban only targets 8 percent of the global Muslim population, saying that “a reasonable observer would not think this is a Muslim ban.”
“If you look at what was done, it does not look at all like a Muslim ban,” Alito said. “There were other justifications that jump out as to why these particular countries were put on the list.”
The current version of the travel ban, which could affect nearly 150 million people, prevents entry for most immigrants and travelers from Iran, Syria, Yemen, Libya and Somalia. It also includes North Korea and some officials from Venezuela. Previous versions had included Iraq, Chad and Sudan.
Francisco said the fact the administration revised and narrowed its list of countries shows that it was acting in good faith when developing the latest version of the travel ban.
“I think it reflects the tailored nature of this proclamation,” he said.
But some of the more liberal justices questioned the administration’s arguments that the ban was purely about national security.
Justices Elena Kagan and Sonia Sotomayor, wondered if the administration’s global review was just window dressing to hide Trump’s previous disparaging remarks about Muslims.
Sotomayor also questioned whether the president was extending his power beyond what was granted to the executive branch by Congress, which she noted already had stringent vetting requirements for people coming into the U.S. from troubled countries.
“If you accept this order, you’re giving this president the power no president in 100 years has exercised.” — Neal Katyal
“Where does the president get the authority to do more than what Congress has already enacted?” Sotomayor asked.
Katyal argued that Trump took an “iron wrecking ball” to the nation’s immigration laws.
He also questioned whether there was an impending security threat that would require a “flat nationality ban,” noting that the president has made no moves to introduce legislation or get congressional backing for his ban in the nearly 460 days since signing it.
“If you accept this order, you’re giving this president the power no president in 100 years has exercised,” Katyal said.
Hawaii has been at the forefront in the fight to halt Trump’s travel ban from taking hold.
The state filed legal challenges with each iteration, from the first order on Jan. 27, 2017, that sparked nationwide protests at airports to the latest version that Lt. Gov. Doug Chin dubbed “Travel Ban 3.0″ when he was the state’s attorney general.
Chin, who is now running for Congress in large part on the name recognition he’s accrued as a Trump antagonist, told Civil Beat that his decision as attorney general to challenge the president was simple, especially given Hawaii’s history.
“We’ve always been very sensitive about nation of origin discrimination,” Chin said. “When this first came out, right away it just signaled this is just one step down a very slippery slope to taking away someone’s civil rights.”
One in five residents is an immigrant and many more are direct descendants of people who were the first in their families to move to the country, including Chin himself, whose parents came to the U.S. from China in 1958.
Chin was in the audience for Wednesday’s arguments.
While he said the justices all seemed to ask tough questions, he didn’t get the sense that they tipped their hands enough to indicate which side will prevail in the end.
“They’re going to make a decision by the end of June and I fully expect it will be a split decision,” Chin said.
Hawaii Sen. Mazie Hirono also was in attendance during Wednesday’s argument.
She said she worries that if the high court allows the travel ban to stand then Trump — who she described as an “anti-immigrant president” — will become even more emboldened.
Hirono is an immigrant who came to the U.S. from Japan as a child. She said after the hearing that it was important for Hawaii, with its history, to stand up to Trump.
“We understand what it would be like to ban a whole group of people on the basis of their nationality or religion,” Hirono said. “We can’t let this kind of executive order stand without pushing back.”
The Associated Press contributed to this report.
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