Written by Don Byrd

The U.S. Supreme Court heard oral arguments today (audio here/transcript here) in the challenge to President Trump’s “travel ban” Proclamation, including claims that it violates the Establishment Clause by targeting Muslims for exclusion from entry into the country. 

As the BJC’s Holly Hollman said in a statement, “This case implicates an essential aspect of religious freedom in our country: The government cannot enact laws designed to harm a religious group.” Hollman and more than 30 other constitutional scholars filed an important brief with the court arguing the Proclamation is impermissibly based in religious animus.

During today’s argument, the Court focused primarily on the broader issue of whether the Proclamation exceeded the President’s authority under federal immigration law. But the Justices asked pointed questions of both sides about the religious discrimination issue, which centers on whether statements made by President Trump and other administration officials indicate the purpose of banning immigration from certain majority Muslim countries is to exclude individuals on the basis of their religion.

Could an anti-Semitic President ban immigration from Israel? Do discriminatory campaign proposals matter? The Court explored these avenues and more. Here are some extended excerpts from the transcript of today’s questioning of Solicitor General Francisco and plaintiffs’ attorney, Neal Katyal:

JUSTICE KAGAN:…So let’s say in some future time a -­ a President gets elected who is a vehement anti-Semite -­


JUSTICE KAGAN: — and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in the course of that, asks his staff or his cabinet members to issue … recommendations so that he can issue a proclamation of this kind, and they dot all the i’s and they cross all the t’s. And what emerges — and, again, in the context of this virulent anti-Semitism — what emerges is a proclamation that says no one shall enter from Israel. . . .  Do you say Mandel puts an end to judicial review of that set of facts?

GENERAL FRANCISCO: No, Your Honor, I don’t say Mandel puts an end to it, but I do say that, in that context, Mandel would be the starting point of the analysis, because it does involve the exclusion of aliens, which is where Mandel applies. If his cabinet — and this is a very tough hypothetical that we’ve dealt with throughout — but if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the President would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.

GENERAL FRANCISCO: [W]e are very much of the view that campaign statements are made by a private citizen before he takes the oath of office and before, under the Opinions Clause of the Constitution, receives the advice of his cabinet, and that those are constitutionally significant acts that mark the fundamental transformation from being a private citizen to the embodiment of the executive branch. So that those statements should be out of bounds. But for -­

JUSTICE KENNEDY: But suppose you have a local mayor and, as a candidate, he makes vituperative hate — hateful statements, he’s elected, and on day two, he takes acts that are consistent with those hateful statements. That’s — whatever he said in the campaign is irrelevant?

GENERAL FRANCISCO: Your — Your Honor, if he takes the same oath -­

JUSTICE KENNEDY: You would say whatever he said in the campaign is irrelevant?

GENERAL FRANCISCO: I would say… yes, because we do think that oath marks a fundamental transformation, but I would also say here it doesn’t matter, because, here, the statements that they principally rely on don’t actually address the meaning of the proclamation itself. This is not a so-called Muslim ban. 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, including Iraq, Chad, and Sudan.

JUSTICE ALITO: Mr. Katyal, would any reasonable observer reading this proclamation, with — without taking into account statements, think that this was a Muslim ban? I mean, there are — I think there are 50 predominantly Muslim countries in the world. Five — five countries — five predominantly Muslim countries are on this list. The population of the — of the predominantly Muslim countries on this list make up about 8 percent of the world’s Muslim population.

MR. KATYAL: Absolutely…  You have to look to all the circumstances around it that are said, the publicly available ones. You know, and, Justice Alito, the fact that the order only come — encompasses some Muslim countries I don’t think means it’s not religious discrimination. For example, if I’m an employer and I have 10 African-Americans working for me and I only fire two of them, I don’t think — you know, and say, well, I’ve left the other eight in, I don’t think anyone can say that’s not discrimination.

JUSTICE ALITO: No, I — I understand that. And it is one of our fundamental values that there is religious freedom here for everybody in that, number — adherence to every religion are entitled to equal treatment. My only point is that if you look at what was done, it does not look at all like a Muslim ban. There are other justifications that jump out as to why these particular countries were put on — on the list. So you — it seems to me the list creates a strong inference that this was not done for that invidious purpose.

MR. KATYAL: Justice Alito, I think if it were just the list, I think we’d be right -­ you’d be right, although I’d point out that you, yourself, in the Stormans case said that it’s a religious — it raises an inference of religious gerrymander, of “the burden imposed falls almost exclusively on those with religious objections.” This is a ban that really does fall almost exclusively on Muslims, between 90.2 percent and 99.8 percent Muslims. And so it does look very much like what you said in Stormans. But even then, we wouldn’t be here if it weren’t for all of the different statements. And the best evidence of this, about what a reasonable, objective observer would think, is to look at the wide variety of amicus briefs in this case from every corner of society representing millions and millions of people from the U.S. Conference of Catholic Bishops, which calls it “blatant religious discrimination.”

JUSTICE GORSUCH: Mr. Katyal, on that, it’s been a long time since this Court has used the Lemon test, reasonable observer, even to strike down a domestic statute, let alone something with purely international application. What — what do we do about that?

MR. KATYAL: Yeah, so two things. Number one is I think the very fact that this is immigration cuts the other way. I mean, the heart of the First Amendment is about immigration restrictions on, for example, Catholics at the founding and our protest of King George, which is all about using the immigration power to exclude people of a different faith. And that’s what our Constitution is about. So that’s the first thing. And the second is we don’t think you have to get into Lemon and all these other tests that you all have struggled with. I think this Court in Lukumi was very clear in saying that, when you’re talking about denigration of religion, all the tests point in the same direction.