Trump administration to Supreme Court: Travel ban not religious ban

The Trump administration is arguing that the president’s executive order temporarily banning nationals from six majority-Muslim countries from entering the U.S. had nothing to do with religion, despite comments seen as linking the two by President Trump on the campaign trail.

In an 84-page brief filed with the Supreme Court late Thursday — the first since the high court agreed to hear the case in October — the Department of Justice (DOJ) said Trump’s executive order “is not a so-called ‘Muslim ban’ and campaign comments cannot change that basic fact.”

In its brief Thursday, the DOJ argued that the 4th U.S. Circuit Court of Appeals incorrectly relied on statements Trump made about banning Muslims while on the campaign trail as a presidential candidate.

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The argument insists that the statements of a candidate do not “bind” an elected official to action.

The administration is arguing that Iran, Libya, Somalia, Sudan, Syria and Yemen had already been identified as “presenting a heightened terrorism-related concern,” and “in light of these national security concerns,” Trump determined unrestricted entry of nationals from those countries into the U.S. would be “detrimental to the interests of the United States.”

The Supreme Court gave the White House a partial win in June when it said the government could issue it’s 90-day travel ban, but carved out an exemption to entry for individuals who have a “bona fide relationship” to a person or entity in the U.S.

The government is appealing the lower court rulings blocking the ban from taking effect following challenges from the state of Hawaii and the International Refugee Assistance Project.

In a lower court, Judge Roger Gregory said Trump’s order could not have been separated from the narrative linking it to the animus that inspired it.

But the DOJ said campaign statements are often short-hand for “larger ideas” and “are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise.”

“They often are made without the benefit of advice from an as-yet-unformed administration,” the DOJ attorneys, including Acting Solicitor General Jeffrey Wall, wrote in the brief. “And they cannot bind elected officials who later conclude that a different course is warranted.”

The administration goes on to claim the 9th U.S. Circuit Court of Appeals also misunderstood the basis for the order, when it said the order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.

“The president did not determine that all nationals of the six countries are likely terrorists,” the DOJ said.

“Rather, given his assessment of future threats and risk tolerance, he determined that certain foreign governments — especially those that sponsor or shelter terrorism — may not be able and willing to provide sufficiently complete and reliable information needed to “tie” their nationals to “terrorist organizations,” “identify” them “as contributors to active conflict,” or establish a “link” between them and “their propensity to commit terrorism,” which the DOJ said is the “principal purpose of the 90-day ban.”