The Supreme Court said Friday that it will decide whether President Trump’s responsibility to protect the nation grants him authority to ban travelers from specific countries and that it will rule by June in the case, 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, but the conservative-leaning Supreme Court has given the administration hope that Trump may be able to carry out one of the most significant and divisive initiatives of his presidency.
What the president has said is a necessary step to protect the country from terrorism has been characterized by his opponents as an illegal and unconstitutional fulfillment of campaign promises to ban Muslim immigrants.
His first order, issued a week after his inauguration, created chaos at airports and prompted protests in the United States and abroad. Trump’s comments and tweets about immigration and terrorism have ensured that the issue remains at the front of the national debate.
In a short order accepting the case for argument in April, the justices said they will consider the statutory justification for Trump’s actions as well as charges from opponents that it is an unconstitutional restriction based on religious discrimination.
The order would also seem to further ensure a blockbuster conclusion to the court’s term in June — the Supreme Court already is considering potentially landmark cases on partisan gerrymandering, privacy, unions and a clash between religious rights and gay rights.
In requesting the court provide a final answer on the travel ban, Solicitor General Noel J. Francisco said the high court must reestablish 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,” 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.
“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 than the lower courts that have rejected it.
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. That panel 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.”
Another challenge to the ban is 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, but the Supreme Court told the administration and Hawaii to also argue that constitutional question.
Trump’s moves on the issue have been controversial from the start. After the first version was rejected by the courts, the administration replaced it with a second one. It 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 permitted the ban to go into effect but granted entry to those with a significant connection to the United States, such as family members, a waiting job or an academic 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 to determine which countries 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 ones, 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.”
“Senate Democrats own the Schumer Shutdown,” the White House press secretary, Sarah Huckabee Sanders, said in a statement. “Tonight, they put politics above our national security, military families, and our country’s ability to serve all Americans.”
Democrats, calling it the “Trump shutdown,” countered that Republicans were responsible for the management of a government in their control.
“Every American knows the Republican Party controls the White House, the Senate, the House,” Mr. Schumer said. “It’s their job to keep the government open.”
In addition to funding government operations through Feb. 16, the House-passed bill would extend funding by six years for the popular Children’s Health Insurance Program, a provision intended to secure Democratic votes.
But Democrats were seeking concessions on other priorities, such as protecting young undocumented immigrants from deportation, increasing domestic spending, securing disaster aid for Puerto Rico and bolstering the government’s response to the opioid epidemic.
Federal agencies had prepared for the shutdown; on Thursday night, officials at the White House Office of Management and Budget instructed federal agency leaders to give their employees informal notice of who would be furloughed and who would not if funding lapsed.
Formal notifications are to be given as early as Saturday morning, budget office officials said, insisting on anonymity to brief reporters about the details of what the White House called “lapse planning and shutdown operations.”
Advertisement
Continue reading the main story
More than one million active-duty military personnel will serve with no lapse, they said, but could not be paid until the shutdown ends. Agencies like the Energy Department that have funding that is not subject to annual appropriations can use that money to stay open, the officials said, and the administration is encouraging them to do so. Most mandatory programs — entitlements such as Social Security that are automatically funded rather than subject to congressional appropriations — can continue without disruption.
Officials said Mr. Trump may travel on Air Force One to carry out his constitutional responsibilities, including a planned trip next week to Davos, Switzerland. But it was unclear whether trips to Mar-a-Lago — his exclusive club in Palm Beach, Fla. — such as the one he had planned for this weekend, would fall into that category.
Video
What Happens When the Government Shuts Down?
The federal government has shut down. But what does that mean and how does it happen?
By AINARA TIEFENTHÄLER and SARAH STEIN KERR on Publish Date January 19, 2018.
Mr. Trump canceled plans on Friday to travel to his Florida resort and will stay in Washington until a spending bill is passed, a White House official said Friday morning.
The Senate’s vote, late Friday night, came after a day of budget brinkmanship in Washington that included the 90-minute Oval Office negotiating session between Mr. Trump and Mr. Schumer.
“We had a long and detailed meeting,” Mr. Schumer said at the Capitol after leaving the White House. “We discussed all of the major outstanding issues. We made some progress, but we still have a good number of disagreements. The discussions will continue.”
Just hours later, the negotiations collapsed.
By Friday night, a last-minute congressional deal to stop a rare shutdown of a federal government under one-party control remained elusive.
“Our Democratic colleagues are engaged in a dangerous game of chicken,” Senator John Cornyn of Texas, the No. 2 Senate Republican, warned in a speech on the Senate floor.
Mr. Trump, who described his session with Mr. Schumer as an “excellent preliminary meeting” in a Twitter post Friday afternoon, did not appear able or willing to suggest his own solution.
Excellent preliminary meeting in Oval with @SenSchumer – working on solutions for Security and our great Military together with @SenateMajLdr McConnell and @SpeakerRyan. Making progress – four week extension would be best!
Mr. Cornyn said Mr. Trump had rejected a proposal by Mr. Schumer to fund the government through Tuesday to allow negotiations to continue.
Advertisement
Continue reading the main story
“The president told him to go back and talk to Paul Ryan and Mitch McConnell and work it out,” Mr. Cornyn said, referring to the House speaker and Senate majority leader. A spokesman for Mr. Schumer, Matt House, said that was not true.
“It’s time for us as Democrats and Republicans to sit down in a room together, think about this great nation and the frustration they have with our political system and those of us in political life,” Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the Senate, said in a speech on the Senate floor.
Around the country, state and local officials were left scratching their heads at the dysfunction in Washington.
“We’re the United States of America,” Gov. Matt Mead, the two-term Republican governor of Wyoming, said in an interview on Friday. “We should be able to figure out these problems without going to the cliff every so often, whether it’s with Republicans or Democrats in office. There certainly has to be a better way.”
Democrats delivered speeches on the Senate floor in front of a huge placard that blared, “Trump Shutdown.” At the White House, Mr. Trump’s budget director, Mick Mulvaney, said the Trump administration was preparing for “what we’re calling the ‘Schumer shutdown.’”
Advertisement
Continue reading the main story
Tempers were flaring in the Republican Party, as well. Senator Lindsey Graham of South Carolina, a moderate on immigration who has been trying to broker a deal with Democrats, laced into Senator Tom Cotton of Arkansas on Friday, deriding him as “the Steve King of the Senate” in an interview with MSNBC, a reference to the Iowa congressman who is perhaps the most virulent anti-immigrant voice in Congress.
Mr. Cotton, who has helped thwart Mr. Graham’s efforts, retorted by referring to Mr. Graham’s failed 2016 presidential bid.
“The difference between Steve King and Lindsey Graham is that Steve King can actually win an election in Iowa,” Mr. Cotton told reporters.
Mr. Cotton went on to argue that it was Mr. Trump’s views on immigration that powered him to the Republican Party’s nomination, while Mr. Graham was relegated to the “kiddie table” at the primary debates.
For Democrats, voting against the stopgap measure posed undeniable risks. Ten Senate Democrats are running for re-election in states that Mr. Trump won in 2016 — including Indiana, Missouri, North Dakota and West Virginia, where some voters may hold little sympathy for one of the primary causes of the looming shutdown: protecting the young undocumented immigrants known as Dreamers.
Five of those Democrats introduced legislation on Friday to withhold pay from members of Congress during a shutdown. “If members of Congress can’t figure this out and keep the government open, then none of us should get paid,” said Senator Claire McCaskill, Democrat of Missouri.
Earlier in the day, Mr. McConnell warned that the Senate was “just hours away from an entirely avoidable government shutdown.”
“This vote should be a no-brainer,” Mr. McConnell said, “and it would be, except the Democratic leader has convinced his members to filibuster any funding bill that doesn’t include legislation they are demanding for people who came into the United States illegally.”
Advertisement
Continue reading the main story
The standoff on immigration dates to September, when Mr. Trump moved to end an Obama-era program called Deferred Action for Childhood Arrivals, or DACA, which shields the young immigrants from deportation. Democrats have been eager to enshrine into law protections for those immigrants.
At the same time, congressional leaders from both parties have been trying to reach an agreement to raise strict limits on domestic and military spending, a deal that would pave the way for a long-term spending package. So far this fiscal year, they have relied on stopgap measures to keep the government funded.
“At some point, Congress needs to do better than government-by-crisis, short-term fixes, and sidestepping difficult issues,” said Senator Chris Coons, Democrat of Delaware. “That time is now.”
