But Francisco said Trump's proclamation is not a Muslim ban. If there is power inherent in the office of the presidency, then every person who holds that office has that power, regardless of the person's character or motivations.
Francisco also said that because the ban does not affect the majority of the world's 2 billion Muslims, it can not be seen as targeting the religion.
"It excludes the vast majority of the Muslim world", he told the justices, saying the presidential order was based on neutral criteria and written "after a worldwide multi-agency review". 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.
But conservative justices peppered Katyal with questions on how the president had exceeded his lawful authority, given that Congress had granted the executive branch broad latitude to bar people's entry to the U.S. She asked if those statements wouldn't be relevant and indicate animus.
"Suppose you have a local mayor and, as a candidate, he makes vituperative hateful statements, he's elected, and on day two, he takes acts that are consistent with those hateful statements", Kennedy said to Francisco. "You would say whatever he said in the campaign is irrelevant?"
Hearing oral arguments in the blockbuster case, the court grappled with whether Trump has the legislative and constitutional powers to ban travelers from certain countries.
First of all, I think that the proclamation is very transparent and lays out in great detail both the process and the substance upon which the proclamation is based.
Francisco stressed that Trump's basis for the travel ban was a result of concerns about national security and not personal beliefs. "And it was noted during those arguments that the president has never actually disavowed that proposal".
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Katyal told the justices that he told the 9th Circuit exactly that but the President hasn't done that.
Supporters of President Donald Trump's travel ban are probably hoping Solicitor General Noel Francisco is a better attorney than he is a geographer.
Kennedy, a conservative who sometimes joins the liberals in major rulings, pushed back on the notion pressed by the challengers that the ban was permanent, noting that the policy includes a requirement for ongoing reports that could potentially lead to the removal of a targeted country.
Supreme Court justices voted in December to allow the ban to take full effect until they came to a conclusion in the court.
The state filed legal challenges with each iteration, from the first order on January 27, 2017, that sparked nationwide protests at airports to the latest version that Lt. Gov. Doug Chin dubbed "Travel Ban 3.0" when he was the state's attorney general. The Los Angeles Times and the Washington Post also agreed that the court appeared ready to uphold the restrictions on travel to the United States from seven countries, including five predominantly Muslim nations-Iran, Libya, Somalia, Syria and Yemen. "Would a reasonable observer think this is a Muslim ban?"
Arguments about the ban were heard Wednesday at the Supreme Court. "What's at stake here is the president's ability to evade any legal effect for his own public statements, including those broadcast on a global stage". "It's about whether our federal courts have a meaningful role to play in enforcing the limits of those authorities, or whether - as the government argues here - the courts simply shouldn't be looking at this at all", he said.
About 150 people demonstrated against the travel ban outside the courthouse on a rainy morning in the US capital.
The president's executive order faced a losing streak in multiple lower courts since he issued it a week after taking office, forcing the White House to change the order's wording two times.