The Supreme Court’s final oral argument of the term on Wednesday will be one of its most important and potentially far-reaching, an examination of the president’s authority to protect the U.S. by banning some foreigners who seek entry. A major issue for the court is separating “the president” from “this president,” the Washington Post reports. The justices will consider President Trump’s third iteration of a travel ban that bars most nationals from a small group of mostly Muslim nations. It is the first time the court has considered the merits of a policy that has consumed the administration since its start. It raises deep questions about the judiciary’s role in national security issues usually left to the political branches.
The first version of the ban was issued a week after Trump took office. Lower courts have found that it and each reformulated version exceeded the authority granted by Congress and was motivated by Trump’s prejudice — animus, as courts like to say — toward Muslims. The state of Hawaii, leading the challenge, told the court: “For over a year, the president campaigned on the pledge, never retracted, that he would ban Muslims from entering the United States …upon taking office, the president issued and reissued … a sweeping and unilateral order that purports to bar over 150 million aliens — the vast majority of them Muslim — from entering the United States.” Hawaii’s brief cites Trump’s retweeting “three anti-Muslim propaganda videos” from a widely condemned far-right British organization. The Justice Department told the court, “The president’s retweets do not address the meaning of the proclamation at all.” If the president’s comments and tweets were not a factor, many experts said, the court would be likely to extend the deference to the political branches it has shown in the past when considering issues of immigration and national security.