"Perhaps not surprisingly, the U.S. Supreme Court arguments over President Donald Trump'stravel ban moved swiftly with the justices" questions barely giving the advocates time to catch a breath or a sip of water.
The administration again appealed, and the president lashed out. The ban restricts the entry of noncitizens from seven countries to varying degrees: Iran, North Korea, Syria, Libya, Yemen, Somalia and Venezuela.
The justices voted in December to allow the ban to take effect pending their full consideration.
And Kennedy asked with skepticism whether the courts should be second guessing the political branches when it comes to national security. On Wednesday, the conservative-majority Supreme Court seemed to lean toward keeping with that tradition.
Justice Neil Gorsuch to Katyal: "We have this troubling rise of this nationwide injunction, cosmic injunction not limited to relief for the parties at issue or even a class action".
In court briefs, Katyal relied on a "litany" of statements that Trump made during the campaign and afterward concerning a restriction of Muslims entering the United States and notes that even though the current proclamation was crafted after a review of the entry policies of other governments, it is a "direct descendant of previous bans" covering numerous same countries.
Francisco asked them to take Trump's order at face value.
The Latest on arguments at the Supreme Court over President Donald Trump's ban on travelers from several mostly Muslim countries.
Some 80 briefs were filed by a variety of entities, including universities, states, religious organizations, civil rights groups and national security experts.
Some who oppose the ban have said courts should treat Trump differently from his predecessors.
The ban's challengers nearly certainly need either Chief Justice John Roberts or Justice Anthony Kennedy on their side if the court is to strike down the policy that its opponents have labeled a Muslim ban. "But regardless, the fight will go on". But that issue was raised only obliquely from the bench when Justice Elena Kagan talked about a hypothetical president who campaigned on an anti-Semitic platform and then tried to ban visitors from Israel.
Conceding that "it's a tough hypothetical", Francisco argued that such a proclamation could be lawful.
The government argued it is not. "He has made crystal clear that Muslims in this country are great Americans, and there are many, many Muslims countries who love this country, and he has praised Islam as one of the great countries of the world". "So would a reasonable observer think this was a Muslim ban?"
Katyal countered that just because the order does not cover all predominantly Muslim countries, doesn't mean it's not religious discrimination.
The government argued it should not - and that in this case, the comments are irrelevant. Francisco told the justices they shouldn't look at those campaign statements. 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. And you read the briefs, you think, hey, there's the business community complaining, there's the academic community, there were 46 scholars at Harvard, there are families in the Lisa Blatt brief, you know, that they say we were trying to get medical treatment and nobody told us about this ... "That's the difference", Katyal said.
To which Katyal replied, "No".
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.
Roberts, Kennedy and Alito did not seem to be swayed, raising other possible scenarios, such as a terrorist attack, where the president may need to act unilaterally.
Justice Sonia Sotomayor was the most aggressive questioner of Francisco. "And that's what makes this different", he said.
Francisco pointed to the "the tailored nature of this proclamation": It was meant to apply to specific countries that were not working closely enough with the United States on national security risks.
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