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The Trump administration travel ban finally reaches the U.S. Supreme Court today. At issue - big questions involving the structure of American government and the core of American values. The court is considering the third version of the president's ban. All have been struck down by the lower courts. The third ban, which the president has complained is a, quote, "watered-down version," was allowed to go into effect by the Supreme Court while the case was litigated.
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Version three bars almost all travelers from five largely Muslim countries, and it adds a ban on travelers from North Korea and on government officials from Venezuela. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The questions in today's case are the stuff of history. Can the courts even review a presidential order on immigration that invokes national security? Did the president violate the immigration law's command against discrimination based on nationality? And does the executive order violate the Constitution's ban on religious discrimination? Lawyer Neal Katyal will represent those challenging the ban.
NEAL KATYAL: It's unconstitutional. It's unnecessary. And most of all, it's un-American.
TOTENBERG: Before he can make that case, he'll have to deal with the government's first argument - that foreign nationals outside the U.S. have no constitutional rights, no right to litigate in U.S. courts and that the courts have no power to review the president's ban. Katyal talked to NPR on condition he was confining his remarks to the case record. To articulate the government's contrary arguments, we turn to John Malcolm of the conservative Heritage Foundation.
JOHN MALCOLM: The Supreme Court has said on a number of occasions that when it comes to national security, so long as the executive comes up with a facially legitimate bona fide reason to exercise that national security prerogative by keeping certain people out of our country, we don't really need more than that.
TOTENBERG: In short, as long as the government gives the reasons for its ban, the courts are not to look behind those reasons to see if there is evidence to justify them.
MALCOLM: The president gets daily classified briefings, judges do not.
TOTENBERG: Lawyer Katyal notes that the Constitution gives exclusive power over immigration to the Congress and that Congress in 1965 banned discrimination in immigration based on nationality. The government counters that the president's order doesn't discriminate on the basis of either nationality or religion, but that argument runs up against repeated statements and tweets candidate Trump made during his presidential campaign.
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PRESIDENT DONALD TRUMP: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.
TOTENBERG: Trump, once president, stopped using such categorical language, while at the same time drawing a connection between the ban and his campaign statements. In February last year, for instance, he castigated a federal judge for blocking the first version of the travel ban declaring, that he would not back down.
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TRUMP: I keep my campaign promises.
TOTENBERG: The Heritage Foundation's Malcolm defends the president while acknowledging his shortcomings.
MALCOLM: The president has intemperate moments, but he has said that what we are targeting are not Muslims but jihadists. And there are about 50 or 51 majority-Muslim nations. But we are targeting countries that are points of vulnerability either because they lack the capacity or they fail to cooperate with us or they are safe havens of terrorism.
TOTENBERG: Making the contrary argument, however, are not just those directly challenging the travel ban but an astounding group of former national security experts who've served in Republican and Democratic administrations alike, as well as more than two dozen retired top generals and admirals. In several friend-of-the-court briefs, they argue that the travel ban not only violates American law, but it has harmed national security.
MICHAEL HAYDEN: It actually made us less safe.
TOTENBERG: General Michael Hayden served as director of the National Security Agency and then CIA director from 1999 to 2009. Hayden notes, for instance, that since the Trump ban, he's gotten calls from CIA officers still in government telling him the ban was making it far more difficult to recruit so-called assets and spies in the targeted countries, locations that are essential to the fight against ISIS and radical Islam.
HAYDEN: Just think of the impact of a pronouncement from the American government that people from that country where you've just recruited are never allowed or at least not allowed for the foreseeable future to enter this country. You have taken off the board the last sanctuary that the case officer uses to help recruit someone.
TOTENBERG: The national security experts who filed briefs opposing the ban note that no individual from any of the banned countries has committed a terrorist act on U.S. soil. Oddly, says General Hayden, the U.S. has often had more trouble with Belgium in reporting on jihadis seeking entry to the U.S. Joining Hayden and signing a series of briefs opposing the travel ban are more than 55 former CIA and deputy CIA directors, counter-terrorism chiefs, top diplomats with long records of service in the Middle East, secretaries of state and even the Republican chairman of the 9/11 Commission. They support the challengers' argument that the president has exceeded his authority in enacting the ban. Again, Neal Katyal.
KATYAL: Our founders put Congress in the driver's seat, the exclusive driver's seat, in Article 1 of our Constitution for a reason.
TOTENBERG: Angry about King George's abuse of his immigration powers, Katyal said, the founders decided on a different approach.
KATYAL: These decisions are too important to be left to the decision-making of one man.
TOTENBERG: But The Heritage Foundation's Malcolm counters that Congress has given up some of that power.
MALCOLM: Congress has explicitly, by statute, given the president the authority to exclude any aliens or class of aliens when he believes that not doing so would be detrimental to the interests of the United States.
TOTENBERG: Katyal replies that that doesn't give the president the power to override the law's ban on discrimination based on nationality. He quotes the late Justice Antonin Scalia in addressing which branch of government can do what. In a 1988 dissent, Scalia wrote that threats to the Constitution's separation of powers usually come disguised in sheep's clothing, but this wolf, said the justice, comes as a wolf. And so it is in this case, says Katyal.
KATYAL: When you read what the president's executive order is and you read his statements, you don't have to go very far to understand what they are. They are wolves coming as wolves.
TOTENBERG: A decision in the travel ban case is expected in late June. Nina Totenberg, NPR News, Washington.
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