GENERAL FRANCISCO: I would say... yes, because we do think that oath marks a fundamental transformation, but I would also say here it doesn't matter, because, here, the statements that they principally rely on don't actually address the meaning of the proclamation itself.
But some of the more liberal justices questioned the administration's arguments that the ban was purely about national security. Trump's lawyers say Congress gave the president broad authority to "suspend the entry" of "any class of aliens" whenever he sees fit and for as long as he "shall deem necessary".
Justices Elena Kagan and Sonia Sotomayor, wondered if the administration's global review was just window dressing to hide Trump's previous disparaging remarks about Muslims. As usual, Justice Clarence Thomas remained silent.
It seems nearly beyond imagination at this point that the high court will do anything other than uphold the order, based simply on the fact that Trump clearly had the authority to issue it. Justice Stephen Breyer's main concern was the trouble faced by travelers from five majority-Muslim countries seeking waivers.
The Supreme Court is expected to issue a ruling on the ban by the end of June. But Wednesday was the first time the justices considered the travel ban in open court.
Apart from the campaign statements, Trump's presidential tweets about the travel ban and last fall's retweets of inflammatory videos that stoked anti-Islam sentiment all could feature in the court's discussion of the travel ban's legality. But, he maintains, the travel ban is illegal and unconstitutional and the President can not operate as though he is above the law. That order banned people from Iran, Libya, Syria, Yemen, Somalia and Sudan from coming to the United States, but the court made a decision to dismiss the case as moot when the policy expired before the scheduled arguments. Chad has since been taken off this list.
"If the Supreme Court rules that the President's actions can be halted based on his campaign statements, courts will be drawn into the unenviable position of serving as fact-checkers for the executive branch", he said. It included Iran, Yemen, Somalia, Libya, and Syria and added Chad, another predominantly Muslim country.
The court previously voted in December to allow the policy to take full effect.
Hanging in the balance now are almost 150 million residents of Iran, Libya, Somalia, Syria and Yemen. This time, he barred all entry from only Iran, North Korea and Syria, with the exception of Iranians looking to enter the country on student visas.
That was among the tough questions the Supreme Court's liberal justices posed to the Trump administration as it defended its travel ban on Wednesday.
Justice Anthony Kennedy to Francisco: "Suppose you have a local mayor and, as a candidate, he makes vituperative hate-hateful statements, he's elected, and on day two, he takes acts that are consistent with those hateful statements. Does that mean he can't, because you would regard that as discrimination against a majority-Muslim country?" The travel-ban case, however, is the only one listed on Wednesday's docket, so presumably that hearing will start at 10 a.m. A Trump win here would tend to undercut their claims that Trump acted lawlessly with the travel ban, while doing nothing for opponents' arguments of underlying injustice in it. Trump scored an upset win in the 2016 election by "fueling" both of these issues, which should indicate that to the extent these "fuel" one side over the other, it's not the progressives who come out on top.
In an exchange with Hawaii's lawyer, Neal Katyal, Kennedy indicated it was not practical for a president to predict that six months after the ban was announced there will be a "safe world".
That would have given the government reason to be optimistic, and today's argument might have reinforced that optimism: Although it's always risky to make predictions based on the oral argument, it's hard to see how Hawaii can pick up the five votes that it needs to strike down the president's order.
"He made it crystal clear on September 25 that he had no intention of imposing the Muslim ban", Francisco said. If he had disavowed those comments, Katyal said, the discrimination challenge would not apply.
The administration is asking the court to reverse lower court rulings that would strike down the ban.
"The president's Cabinet, just like all of us here, is duty-bound to protect and defend the Constitution".
Judges and legal analysts who defend the travel ban argue that Trump's words can not form the basis for a constitutional violation.
They were angry about King George III abusing his immigration powers, Katyal said, and they concluded, "These decisions are too important to be left to the decision-making of one man".
Several judges have gone further, arguing that campaign promises should be off-limits, or at least dwarfed by government actions that are not overtly discriminatory.