Nearly 15 months after the first round of President Donald Trump’s travel ban kicked in, sparking angry protests at international airports across America, the Supreme Court is set to hear arguments Wednesday on whether the controversial policy violates federal law or the U.S. Constitution.

However, the directive set to go before the justices Wednesday is a significantly scaled-back version of the one which Trump signed a week into his presidency, triggering outrage over what critics decried as the "Muslim ban" Trump repeatedly promised during his campaign.

Due to a series of setbacks in the courts, as well as pressure from Congress, the military and U.S. allies and Congress, Trump is now on at least the third and arguably the fourth iteration of his travel ban, which initially cut off virtually all visits to the U.S. by citizens of of seven majority-Muslim countries.

Opponents say the changes in the current version of the policy are largely cosmetic and do nothing to change their view that the new versions are inspired by the same anti-Muslim sentiment that led to the earlier orders.

“It is definitely discriminatory,” said Azadeh Shahshahani, legal and advocacy director with the Atlanta-based immigrant rights’ group Project South. “There’s no question that Trump always wanted to implement a Muslim ban. He pronounced this in several of his speeches.”

One central question for Wednesday’s arguments is how resistant the justices are to engaging in a discussion about Trump’s motives and whether they consider his anti-Muslim campaign trail rhetoric relevant to the legality of his current policies.

While two federal appeals courts have ruled squarely against Trump’s travel ban policy, some judges have questioned the wisdom of courts trying to parse campaign speeches and TV interviews that are often marked by hyperbole and promises that may never be fulfilled.

Trump critics say the line from his campaign rhetoric to the current policy is clear. They also point to various complaints he’s made on Twitter about administration lawyers shaping his initial order into a "watered-down, politically correct version" and to a series of anti-Muslim and distorted videos he retweeted in November.

The Trump administration has claimed that the restrictions will improve national security, partially by excluding potentially dangerous foreigners, although that argument has been undermined by a series of exemptions and limits placed on the initial ban. Now, Justice Department lawyers and Department of Homeland Security officials tend to focus more on how the travel restrictions encourage foreign governments to be more cooperative with U.S. efforts to vet potential visitors.

However, Shahshahani questions the administration’s contention that the ban is needed for national security.

“They have failed to demonstrate that the people from these countries [have] been involved in any type of a terrorist action within the U.S.,” she said.

A report released by the libertarian Cato Institute in September supports that assertion.

The report found the version of the travel ban Trump introduced last October, when viewed retrospectively, would not have prevented the entry of any of terrorists who arrived in the U.S. following the September 11, 2001 attacks.

But plenty of court watchers remain skeptical the justices will rule against Trump’s broad-brush immigration restrictions, noting a long history of courts leaving such foreign policy and security decisions to other parts of the government.

“I think this is a silly policy,” said South Texas College of Law professor Josh Blackman. “But it’s not my job to make these sorts of decisions, and traditionally courts have deferred to the executive when dealing with matters of national security.”

Blackman contends Trump had authority to institute the ban both under statute and broad powers granted by the Constitution.

A provision in the 1952 Immigration and Nationality Act says when the president finds a foreigner or class of foreigners detrimental to U.S. interests, he can suspend entry “for such period as he shall deem necessary.”

“The courts are usually very circumspect when you have both statutory and constitutional authority on your side,” Blackman said.

The first version of Trump’s policy banned travel to the United States by nationals of seven majority Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order prompted widespread confusion, particularly over its application to green card holders from those countries. Courts quickly blocked the order’s impact on existing visa holders and eventually put the key part of the travel ban on hold worldwide.

Trump appealed that injunction to the 9th Circuit Court of Appeals, which refused to revive the policy. At that point, the administration chose to pass up a potential appeal to the then-shorthanded Supreme Court and, instead, redraft the ban.

A revised order issued in March deleted Iraq from the banned list, in part due to military and Congressional protests, as well as complaints from Iraqi officials about targeting a country critical to U.S. efforts to wipe out ISIS. Existing visa holders and those with green cards were explicitly exempt.

Federal judges in Hawaii and Maryland blocked the key parts of that version of the ban as well, accepting arguments that Trump exceeded his authority. Appeals courts upheld those rulings, although the 9th Circuit chose to steer clear of the issue of Trump’s rhetoric and decide the case solely on statutory grounds.

When the Trump administration took the issue to the Supreme Court, seeking an emergency order to implement the ban, the justices fashioned a compromise. The Trump administration won the right to implement the ban, but a six-member majority of the court forced officials to exempt foreigners with bona fide family ties to the U.S. or connections to business or educational institutions here.

In the June ruling, three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — said they would have allowed the entirety of Trump’s travel ban to take effect while the court considered the case.

Trump revised the ban for a third time last September, ordering a tailored restrictions on eight countries. The president dropped one majority Muslim country, Sudan, from the earlier list and added another largely Muslim nation, Chad, along with Venezuela and North Korea. Some of the restrictions impacted nearly all travel, while others were more limited. Critics said the addition of Venezuela and North Korea was a transparent effort to obscure the anti-Muslim thrust of the overall policy.

While lower courts ruled against the ban, the Supreme Court allowed the third version of the travel ban to go fully into effect in December pending the outcome of litigation. This time, the court split, 7-2. Democratic-appointed justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have left in place the earlier compromise exempting those with bona fide ties to the U.S.

There has since been one significant change to the so-called ban: Chad was taken off earlier this month. Officials said the country was providing greater cooperation with U.S. anti-terrorism efforts, but there were signs that the country’s inclusion was the result of bureaucratic foul-ups.

Blackman says the 7-2 decision late last year allowing Trump’s policy to take full effect is a sign that the justices will rule in favor of the administration. They rarely make such a move and reverse course later, he said.

Another key factor will be the hard-to-predict view of Justice Anthony Kennedy, according to Blackman.

If the justices split along conservative and liberal ideological lines, Kennedy will be the decisive vote.

“The million-dollar question is always Justice Kennedy,” said Blackman. “He likes to keep us in suspense.”

The argument session Wednesday is the last one scheduled before the justices this term. A decision in the case is expected by the end of June.

Source: https://www.politico.com/story/2018/04/25/trump-travel-ban-supreme-court-549224