The US Supreme Court looks poised to uphold President Trump’s travel ban, which blocks most people from seven countries — including Iran, Libya, Somalia, Syria, and Yemen — from entering the United States. During oral arguments on Wednesday, Justice Anthony Kennedy, who is often seen as a swing vote, appeared to side with the conservative wing of the court. US solicitor general Noel Francisco argued the travel restrictions were not a “so-called Muslim ban” and that the order fell within the president’s executive authority. Francisco made the claim even though Trump campaigned for president calling for a “total and complete shutdown of Muslims entering the United States.” Lower courts have repeatedly ruled against versions of Trump’s travel ban, saying they were unconstitutional and in violation of federal immigration law. We are joined by Lee Gelernt, deputy director of the ACLU’s national Immigrants’ Rights Project, who presented the first challenge to President Trump’s travel ban order last year, and Diala Shamas, a staff attorney at the Center for Constitutional Rights. She was in Djibouti last month speaking to Yemeni relatives of US citizens attempting to come to the United States under Trump’s travel ban.
AMY GOODMAN: This is Democracy Now!, Democracynow.org, The War and Peace Report. I’m Amy Goodman.
NERMEEN SHAIKH: And I’m Nermeen Shaikh. Welcome to our listeners and viewers around the country and around the world. The US Supreme Court appears poised to uphold President Trump’s travel ban, which blocks most people from seven countries, including Iran, Libya, Somalia, Syria and Yemen, from entering the United States. During oral arguments on Wednesday, Justice Anthony Kennedy, who is often seen as a swing vote, appeared to side with the conservative wing of the court. US Solicitor General Noel Francisco argued the travel restrictions were not a “so-called Muslim ban,” and that the order fell within the president’s executive authority. Francisco made the claim even though Trump campaigned for president calling for “a total and complete shutdown of Muslims entering the United States.”
AMY GOODMAN: Lower courts have repeatedly ruled against versions of Trump’s travel ban, saying they were unconstitutional and in violation of federal immigration law. Neal Katyal argued against the ban in the Supreme Court case, which was brought by the state of Hawaii. This is justice Samuel Alito questioning Katyal.
SUPREME COURT JUSTICE SAMUEL ALITO: Mr, Katyal, would any reasonable observer reading this proclamation, without taking into account statements, think that this was a Muslim ban? I mean there are — I think there are 50 predominately Muslim countries in the world. Five countries, five predominately Muslim countries are on this list. The population of the predominately Muslim countries on this list make up about eight percent of the world’s Muslim population. If you looked at the 10 countries with the most Muslims, exactly one, Iran, would be on that list of the top 10. So would a reasonable observer think this was a Muslim ban?
NEAL KATYAL: If it were just the text of the order alone, it might raise eyebrows for fit and other reasons that the briefs go into, but we wouldn’t be here. We absolutely agree that it just — it’s the same test as in Lukumi and other cases. You have to look to all the circumstances around it that are said. The publicly available ones. And Justice Alito, the fact that the order only encompasses some Muslim countries, I don’t think means it’s not religious discrimination. For example, if I am an employer and I have 10 African Americans working for me, and I only fire two of them, I don’t think — and say, “Well, I’ve left the other eight in” — I don’t think anyone can say that is not discrimination.
SUPREME COURT JUSTICE SAMUEL ALITO: No, I understand that. And it is one of our fundamental values that there is religious freedom here for everybody, and that member — adherents 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 the list. So it seems to me the list creates a strong inference that this was not done for that invidious purpose.
AMY GOODMAN: Supreme Court Justice Samuel Alito questioning Neal Katyal during oral arguments Wednesday on President Trump’s travel ban. We are joined now by two guests.
Lee Gelernt is deputy director of the ACLU’s national Immigrants’ Rights Project. He presented the first challenge to President Trump’s travel ban order last year. Diala Shamas is staff attorney at the Center for Constitutional Rights. She was in Djibouti last month speaking to many Yemeni relatives of US citizens attempting to come to the United States under Trump’s travel ban. We welcome you both to Democracy Now! Lee, let’s begin with you. You brought the first challenge in a Brooklyn court. You’re watching this in Supreme Court. Explain what happened and what you think the outcome will be, based on the questions of the Supreme Court justices.
LEE GELERNT: I would hesitate to predict. I never predict. There was definitely some skepticism about our challenge. There was not a lot of talk about religious discrimination. Much less than I think maybe the public would have thought. I think the question I think that most people who are non-lawyers probably have is, we all understand what the president was doing. Why is there this restricted inquiry in court, where they’re not taking into account all the president’s statements, all the tweets?
And what the government has argued is, “Well, you shouldn’t look at what someone says during the campaign.” We will see whether the court looks at it. Most of the discussion centered on whether the president, regardless of religious discrimination, overstepped his authority that Congress has given him. And I think that is ultimately where the fight is going to be on the court. Did Congress give the president this type of authority to ban 150 million Muslims without serious justification?
NERMEEN SHAIKH: Alito, in the clip that we played, says that the ban only applies to five Muslim countries, and of course, there are many more than that, and therefore, it can’t be read as a Muslim ban. So your response to that?
LEE GELERNT: I think the response given in court was correct. Well, what if you just had 10 African Americans working for you and those are the only people that you — that you took three of them and fired them for no reason, and fired no white people? I think that is the correct response. You would still say there is discrimination going on. What we feel like is they added North Korea and they added Venezuela as window dressing.
AMY GOODMAN: I wanted to turn to Justice Elena Kagan who questioned Solicitor General Noel Francisco.
SUPREME COURT JUSTICE ELENA KAGAN: This is a hypothetical that you’ve heard a variant of before — that the government has, at any rate, but I want to give you. Let’s say in some future time, a president gets elected who is a vehement anti-Semite 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.”
SOLICITOR GENERAL NOEL FRANCISCO: Right.
SUPREME COURT JUSTICE ELENA KAGAN: Do you say Mandel puts an end to judicial review of that set of facts?
SOLICITOR GENERAL NOEL 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 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.
AMY GOODMAN: So that was Elena Kagan questioning Solicitor General Noel Francisco. Diala Shamas, your response to this line of questions? If you just said, “No one from Israel can come in.”
DIALA SHAMAS: I think what is obvious about that is that it’s a hypothetical that really isn’t so much a hypothetical, because if you just switched the Jewish identification with Muslim identifications, you have exactly what has happened here. Watching the solicitor general kind of waver a little bit in his response there I think really signals a level of discomfort that he had and that the government is going to ultimately be facing when it comes to the crux of the issue here, which is the issue of discrimination and the constitutionality of the ban.
NERMEEN SHAIKH: Can you give us a sense, Diala, for the people who aren’t quite aware of what the impact of this ban has been and will be in the event that it is kept in place? Who are the people who are most impacted? You were in Djibouti last month speaking to Yemenis. Can you talk about that as well as the other people who are included in this list? A hundred and fifty million.
DIALA SHAMAS: One of the reasons we went to Djibouti in the first place was in order to be able to go to where the impact was being experienced. So as you may recall, with the first executive order, people rushed to the airports, and the sense of chaos was very palpable right here in the US And the moment we sort of shifted to consular processing, where people who are no longer in mid-flight are being banned, but people who are applying for visas at consulates are banned, it’s not as visible, and that makes it much more difficult to really understand the scope of the human impact that the ban has had.
And we felt it was really important to go to Djibouti, which is where many Yemeni applicants went to get their visas processed due to the fact that the consulate in Djibouti itself, the US Embassy in Yemen, closed down in 2015 due to the war in Yemen. So many of them had to travel, make a long and arduous journey to Djibouti, in order to finish processing their visa petitions, in order to rejoin their families. So most Yemenis are actually the direct relatives, usually children, spouses, of US citizens or US lawful permanent residents.
Many of them headed to Djibouti for their interviews either before the stay of the Supreme Court was — the stay of the ban was lifted by the Supreme Court on December 4th, or afterwards to attend an interview. And then what happened was the moment the stay was lifted in December, they received en masse denials of their visa petitions. So families who had been there expecting to wait two, three weeks, pending processing of their visa petition, ended up being in Djibouti for six months, and some people we spoke with were there for two years.
AMY GOODMAN: And so many of them are American citizens who are trying to bring their families?
DIALA SHAMAS: Almost everyone we spoke with were US citizens and their non-citizen — wives usually — husbands, children, parents.
AMY GOODMAN: Or sick children. And that’s the issue we want to go to right now.