The justices are hearing arguments Wednesday over President Donald Trump's ban on travelers from several mostly Muslim countries.
At issue is the third version of the ban - which the president has complained is a "watered down" version. The ban's challengers nearly certainly need one of those two justices to strike down the ban on travelers from several mostly Muslim countries.
The court will consider whether the president can indefinitely keep people out of the country based on nationality.
The appeals court ruled that Mr. Trump had exceeded the authority that Congress had given him over immigration and had violated a part of the immigration laws barring discrimination in the issuance of visas. And the importance of the argument is not lost on the court.
In requesting that the court provide a final answer on the travel ban, Solicitor General Noel J. Francisco emphasized that the president was well within his power to issue the proclamation and that it came after a thorough, worldwide review.
People began lining up days in advance for one of the roughly 50 seats the court typically sets aside for members of the general public.
Moreover, one of the justices is playing hurt.
Others note that while Justices Ruth Bader Ginsburg and Sonia Sotomayor publicly dissented from the order allowing the ban to go fully into effect, liberal Justices Elena Kagan and Stephen Breyer chose not to. The last time was the gay marriage arguments in 2015. "And most of all, it's un-American", he maintained.
The challengers have argued the policy was motivated by Trump's enmity toward Muslims, pressing that point in lower courts with some success by citing statements he made as a candidate and as president.
In short, the government argues that as long as it gives reasons for the ban, the courts are not to look behind those reasons to see whether there is evidence to justify them. "But I think the president set it up so that it's virtually impossible to ignore him when he's shouting from the rooftops about what his objective was in the three versions of the ban", said Cecillia Wang, the American Civil Liberties Union's deputy legal director.
The challengers are led by the state of Hawaii, which said its citizens and educational institutions have suffered because of the ban.
Blackman thinks the court will find that the president has his own inherent constitutional authority to exclude noncitizens and the justices won't hold campaign statements against the president.
Katyal contended that the travel ban's history and circumstances "would convince any reasonable observer that it is a policy meant to exclude Muslims".
Once Trump became president, however, he stopped using such categorical language, while at the same time linking the travel ban to his campaign statements.
Lower courts have struck down each of the three iterations of the president's proclamation, the first of which was issued just a week after he took office in January 2017.
"The president has his intemperate moments", acknowledged the Heritage Foundation's Malcolm.
"We're so far from the hypothetical that we'll concede the hypothetical", Katyal said. Trump tweaked the order after the 9th U.S. Circuit Court of Appeals in San Francisco refused to reinstate the ban. "But it is the president and not the judiciary that is given primary responsibility for protecting our homeland".
"If the court upholds the travel ban on statutory grounds, it will signal that Congress has for decades vested the president with the flexibility to respond to an unforeseeable national security dynamic", he said.
In several friend-of-the-court briefs, they argue that the travel ban not only violates American law but has harmed national security.
Francisco said the Chad decision shows that the restrictions are premised only on national security concerns. Critics said the changes didn't erase the ban's legal problems.
Francisco acknowledges that numerous countries at issue in travel ban 3.0 were also part of earlier travel ban iterations but says that unlike those versions, the current ban benefits from a lengthy review, it targets both Muslim majority and non-Muslim-majority countries, and its restrictions are tailored to each country. The administration says that foreigners have no right to enter the United States and no right to challenge their exclusion in American courts.
In contrast, Francisco said Trump's travel ban is an "easy case" because it came after multiagency review and on the advice of Cabinet officials.
The national security experts, who have filed briefs in the case opposing the travel ban, note that no individual from any of the banned countries has committed a terrorist act on US soil in the last 40 years.
The U.S. Court of Appeals for the 4th Circuit struck down the ban on the constitutional question.
Joining Hayden in signing a series of briefs opposing the travel ban are more than 55 former Central Intelligence Agency and deputy Central Intelligence Agency directors, counterterrorism chiefs, top diplomats with long records in the Middle East, secretaries of state and even the Republican chairman of the 9/11 Commission.
Supporting briefs for the ban's challengers dwarf filings on the administration's side.
"Where does the president get the authority to do more than Congress has already decided is adequate?" she asked. The latest order, they said, was infected by the same flaws as the previous ones.
A decision in Trump v. Hawaii, 17-965, is expected by late June.
- Chimamanda Adichie Replies Critics Of Interview With Hillary Clinton
- Keep watch on Popular stock: Groupon, Inc. (GRPN)
- Windows 10 Lean is Microsoft's new lightweight OS
- Growth Analysis of Mondelez International, Inc. (MDLZ)
- Dell updates commercial PC portfolio, including new Precision, Latitude, and OptiPlex solutions
- Arthur still bookies' favourite for royal baby name
- NITI Aayog also questioning State's dev record: Baghel
- Rio Tinto (LON:RIO) Upgraded to Buy by HSBC
- Pit bull attacks woman on subway
- EBay (NASDAQ:EBAY) Rating Lowered to Sell at BidaskClub