In Trump travel ban fight, Justice Kennedy's 2015 opinion looms large

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WASHINGTON, Feb 10 (Reuters) - Justice Anthony Kennedy's legal reasoning in a 2015 immigration case suggests the U.S. Supreme Court's frequent swing vote would be skeptical of President Donald Trump's travel ban on people from seven Muslim-majority countries.

The little-noticed case involved an Afghan-born naturalized U.S. citizen named Fauzia Din who argued she had the right for a full explanation from the U.S. government as to why her Afghan husband was denied entry. The justices ruled 5-4 against her.

Kennedy wrote in a concurring opinion that in some circumstances the U.S. government's motives in denying someone entry could be subject to legal review.

34 PHOTOS
Protests erupt throughout US cities over Trump immigration ban
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Protests erupt throughout US cities over Trump immigration ban
Demonstrators gather in Copley Square for the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
An international traveler smiles as she walks past the protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Dallas/Fort Worth International Airport in Dallas, Texas, U.S. January 29, 2017. REUTERS/Laura Buckman
Demonstrators yell slogans during protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Los Angeles International Airport in Los Angeles, California, U.S., January 29, 2017. REUTERS/Ted Soqui
Sarah Ijaz joins the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
BOSTON - JANUARY 29: People hold signs as they march from Copley Square to the Mass. State House in Boston on Jan. 29, 2017, to protest President Donald Trump's executive order banning people from several predominantly Muslim countries from entering the country. (Photo by Jessica Rinaldi/The Boston Globe via Getty Images)
Muslim women pray during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" protesting U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
People gather to pray in baggage claim during a protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Dallas/Fort Worth International Airport in Dallas, Texas, U.S. January 29, 2017. REUTERS/Laura Buckman
Eight year-old Esma, an Irish-Moroccan-American, prays with other Muslim women during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" protesting U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Demonstrators spell out "# No Muslim Ban" during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Izzy Berdan (R) joins the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Muslim women pray during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" protesting U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Muslim women pray during the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" protesting U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Demonstrators gather in Copley Square for the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
An activist holds a sign outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Activists gather outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Activists gather outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Activists gather outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Samah Mansur, from Egypt, takes part in the "Boston Protest Against Muslim Ban and Anti-Immigration Orders" to protest U.S. President Donald Trump's executive order travel ban in Boston, Massachusetts, U.S. January 29, 2017. REUTERS/Brian Snyder
Activists gather outside the White House to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
People gather to protest against the travel ban imposed by U.S. President Donald Trump's executive order, at First Baptist Church in Dallas, Texas, U.S., January 29, 2017. REUTERS/Laura Buckman
BOSTON - JANUARY 29: People hold signs as they gather in Copley Square in Boston on Jan. 29, 2017, to protest President Donald Trump's executive order banning people from several predominantly Muslim countries from entering the country. (Photo by Jessica Rinaldi/The Boston Globe via Getty Images)
BOSTON - JANUARY 29: People gather in Copley Square in Boston on Jan. 29, 2017, to protest President Donald Trump's executive order banning people from several predominantly Muslim countries from entering the country. (Photo by Jessica Rinaldi/The Boston Globe via Getty Images)
UNITED STATES - JANUARY 29: Rep. Don Beyer, D-Va., speaks with an ACLU legal observer during the protest at Dulles International Airport in Virginia on Sunday, Jan. 29, 2017. Protests erupted at airports around the country following President Trump's executive order restricting travel from several Islamic countries. (Photo By Bill Clark/CQ Roll Call)
MIAMI, FL - JANUARY 29: A protester holds up a sign that reads, 'Banning Immigrants is UnAmerican!,' as she stands with others at the Miami International Airport against the executive order that President Donald Trump signed clamping down on refugee admissions and temporarily restricting travelers from seven predominantly Muslim countries on January 29, 2017 in Miami, Florida. Demonstrators gathered at airports across the country in protest of the order. (Photo by Joe Raedle/Getty Images)
MIAMI, FL - JANUARY 29: Protesters stand together at the Miami International Airport against the executive order that President Donald Trump signed clamping down on refugee admissions and temporarily restricting travelers from seven predominantly Muslim countries on January 29, 2017 in Miami, Florida. Demonstrators gathered at airports across the country in protest of the order. (Photo by Joe Raedle/Getty Images)
MIAMI, FL - JANUARY 29: Susan Barimo joins with other protesters as they stand together at the Miami International Airport against the executive order that President Donald Trump signed clamping down on refugee admissions and temporarily restricting travelers from seven predominantly Muslim countries on January 29, 2017 in Miami, Florida. Demonstrators gathered at airports across the country in protest of the order. (Photo by Joe Raedle/Getty Images)
People gather outside Terminal 4 during a protest against Donald Trump's travel ban at John F. Kennedy International Airport in Queens, New York, U.S., January 29, 2017. REUTERS/Andrew Kelly
International travelers walk past protestors holding signs as they protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Dallas/Fort Worth International Airport in Dallas, Texas, U.S. January 29, 2017. REUTERS/Laura Buckman
Protesters at Discovery Green Park during Super Bowl events in Houston, Texas, U.S., January 29, 2017. REUTERS/Trish Badger
Dozens of pro-immigration demonstrators cheer and hold sign as international passengers arrive at Dulles International Airport, to protest President Donald Trump's executive order baring visitors, refugees and immigrants from certain countries to the United States, in Chantilly, Virginia, in suburban Washington, U.S., January 29, 2017. REUTERS/Mike Theiler
Activists march to the US Capitol to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein TPX IMAGES OF THE DAY
Activists march to the US Capitol to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
Activists gather at the US Capitol to protest President Donald Trump's executive actions on immigration in Washington January 29, 2017. REUTERS/Aaron P. Bernstein
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In their lawsuit challenging Trump's Jan. 27 ban, the states of Washington and Minnesota cited Kennedy's opinion. Lower courts have temporarily blocked the ban, but the administration may ask the Supreme Court to revive it.

Trump's executive order barred entry for citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days and imposed a 120-day halt on all refugees, except refugees from Syria who are barred indefinitely.

Curbing entry to the United States as a national security measure was a central premise of Trump's 2016 presidential campaign, originally proposed as a temporary ban on all Muslims. He has voiced frustration at the legal challenge to his order.

Washington and Minnesota argued that Trump's order violated the U.S. Constitution by discriminating against Muslims. Trump during the presidential campaign called for a "total and complete shutdown of Muslims entering the United States."

In the 2015 case, Din, who lives in Fremont, California, sued the U.S. government after her husband, Afghan citizen Kanishka Berashk, was denied a visa in 2009. She objected to the government's visa denial under a law giving consular officials wide discretion to bar people linked to "terrorist activities."

The high court's ruling overturned a 9th U.S. Circuit Court of Appeals decision that said Din was right to insist the government give her more information about the visa denial.

Kennedy's opinion suggested he could be willing to dig into the Trump administration's rationale for the order, said Mark Haddad, the Los Angeles-based lawyer who represented Din in the 2015 case.

"The ostensible reason for the travel ban is security but that's not a good faith concern if the underlying reason is religious animus," Haddad said.

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Business leaders react to Trump administration's travel ban
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Business leaders react to Trump administration's travel ban

Bill Ford and Mark Fields, executive chairman and CEO of Ford

"Respect for all people is a core value of Ford Motor Company, and we are proud of the rich diversity of our company here at home and around the world." - Memo to employees

REUTERS/Rebecca Cook

Mark Zuckerberg, Facebook CEO

"Like many of you, I'm concerned about the impact of the recent executive orders signed by President Trump ...

"These issues are personal for me even beyond my family. A few years ago, I taught a class at a local middle school where some of my best students were undocumented. They are our future too. We are a nation of immigrants, and we all benefit when the best and brightest from around the world can live, work and contribute here. I hope we find the courage and compassion to bring people together and make this world a better place for everyone." 

Read full statement here

REUTERS/Mariana Bazo/File Photo

Elon Musk, Tesla CEO

"The blanket entry ban on citizens from certain primarily Muslim countries is not the best way to address the country’s challenges.

"Many people negatively affected by this policy are strong supporters of the US. They've done right,not wrong & don't deserve to be rejected." - Twitter

REUTERS/Bobby Yip/File Photo

Tim Cook, Apple CEO

"Apple would not exist without immigration, let alone thrive and innovate the way we do." - Memo to employees

(Photo credit JOSH EDELSON/AFP/Getty Images)

Jeff Bezos, CEO of Amazon

"This executive order is one we do not support.

"We're a nation of immigrants whose diverse backgrounds, ideas, and points of view have helped us build and invent as a nation for over 240 years.... It's a distinctive competitive advantage for our country—one we should not weaken." - Memo to employees

REUTERS/Brendan McDermid

Reed Hastings, Netflix CEO

"Trump's actions are hurting Netflix employees around the world, and are so un-American it pains us all. Worse, these actions will make America less safe (through hatred and loss of allies) rather than more safe. A very sad week, and more to come with the lives of over 600,000 Dreamers here in a America under imminent threat. It is time to link arms together to protect American values of freedom and opportunity." - Facebook

REUTERS/Steve Marcus/Files 

Howard Schultz, Starbucks CEO

"There are more than 65 million citizens of the world recognized as refugees by the United Nations, and we are developing plans to hire 10,000 of them over five years in the 75 countries around the world where Starbucks does business. "

- Read full statement here

REUTERS/David Ryder (UNITED STATES - Tags: BUSINESS)

Jack Dorsey, CEO of Square and CEO of Twitter

"11% of Syrian immigrants to the U.S. are business owners, more than triple that of U.S.-born business owners" - Twitter

REUTERS/Lucas Jackson/Files

Mark Parker, Nike CEO

"Nike stands together against bigotry and any form of discrimination. Now more than ever, let’s stand up for our values and remain open and inclusive as a brand and as a company." 

- Read full statement here

REUTERS/Brendan McDermid

Brian Chesky, Airbnb founder

"Not allowing countries or refugees into America is not right and we must stand with those who are affected.

"Airbnb is providing free housing to refugees and anyone not allowed in the US. Stayed tuned for more, contact me if urgent need for housing." - Twitter

REUTERS/Phil McCarten

Muhtar Kent, Coca-Cola CEO

"Coca-Cola Co. is resolute in its commitment to diversity, fairness and inclusion, and we do not support this travel ban or any policy that is contrary to our core values and beliefs." -e-mailed statement

REUTERS/Ruben Sprich 

Brian Moynihan, Bank of America CEO

"As a global company, we depend upon the diverse sources of talent that our teammates represent.

"In view of this, we are closely monitoring the recent refugee- and immigration-related executive order in the United States, and subsequent developments." - Memo to employees

REUTERS/Robert Galbraith (UNITED STATES - Tags: SCIENCE TECHNOLOGY BUSINESS HEADSHOT)

Travis Kalanick, Uber CEO

"Drivers who are citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen and live in the U.S. but have left the country, will not be able to return for 90 days. This means they won't be able to earn money and support their families during this period." - Facebook

REUTERS/Danish Siddiqui

Dara Khosrowshahi, Expedia CEO

"I believe that with this Executive Order, our President has reverted to the short game. The U.S. may be ever so slightly less dangerous as a place to live, but it will certainly be seen as a smaller nation, one that is inward-looking versus forward thinking, reactionary versus visionary." - Memo to employees

2010. REUTERS/Lucas Jackson (UNITED STATES - Tags: BUSINESS TRAVEL)

Jeff Immelt, General Electric CEO

"These employees and customers are critical to our success and they are our friends and partners." - Memo to employees

REUTERS/Brian Snyder

Trip Advisor CEO Stephen Kaufer

"We need to do more, not less, to help refugees. Trumps action was wrong on humanitarian grounds, legal grounds, and won't make us 'safer.' " - Twitter

(Photo by Amy E. Price/Getty Images for SXSW)

Salesforce CEO Vala Afshar

Jeff Weiner, LinkedIn CEO

"40% of Fortune 500 founded by immigrants or their children. All ethnicities should have access to opportunity -- founding principle of U.S." - Twitter

Photographer: David Paul Morris/Bloomberg via Getty Images

Salesforce CEO Mark Benioff

"When we close our hearts & stop loving other people as ourselves (MK 12:31) we forget who we truly are---a light unto the nations. " - Twitter

(Photo by Tim Mosenfelder/Getty Images)

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'TOTAL DEFERENCE'

Kennedy's opinion showed he is "not prepared to give complete and total deference to the executive branch in the enforcement of immigration laws," Haddad added.

Samuel Alito, one of the court's most conservative justices, signed onto Kennedy's opinion. In total, six of the current eight justices suggested in that 2015 case that the government was not immune from scrutiny over immigration-related decisions if there was evidence of a questionable motive.

The case brought by Washington and Minnesota, or one of several similar disputes around the country, could reach the high court quickly in the wake of Thursday's decision by a three-judge panel of the San Francisco-based 9th Circuit upholding a Seattle district judge's decision to block Trump's order.

The Trump administration would need to win the support of five of the current eight justices to reinstate the order while litigation over the legality of the directive continues. It could also seek to end the litigation by issuing a new order.

Neil Gorsuch, Trump's nominee to fill a lingering vacancy, is awaiting Senate confirmation hearings and is unlikely to be seated on the court for at least two months.

The 2015 case, called Kerry v. Din, was cited both by the challenging states and the Trump administration in their court fight.

Washington state's lawyers argued Kennedy's opinion showed that courts must look at what motivated the government's decision beyond the words that appear in the order itself. They cited the previous comments by Trump and others expressing a desire to keep Muslims from entering the United States.

The administration noted in court papers Kennedy also made it clear that the government is entitled to deference, especially on national security.

Anil Kalhan, an immigration law professor at Drexel University's Kline School of Law in Philadelphia, said there are multiple ways of interpreting Kennedy's opinion, which could muddy the waters.

Kennedy's opinion "doesn't necessarily mean he would reach the same conclusion" on Trump's ban, Kalhan said.

In Tuesday's 9th Circuit oral argument, administration lawyer August Flentje called the executive order "facially legitimate," meaning there is no need for courts to inquire further into motive.

Judge Michelle Friedland immediately pounced: "Haven't there been allegations here of bad faith?" She said Kennedy's opinion in the Din case as well as a 1972 Supreme Court ruling in a case with similar themes "envision that's something we should look at."

The 1972 case involved professors objecting to the U.S. government's decision not to allow a Marxist academic to speak at a Stanford University conference. The appeals court cited both cases in its Thursday ruling. (Reporting by Lawrence Hurley; Editing by Sue Horton, Will Dunham and Howard Goller)

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