After 15 months of chaos, panic, and legal wrangling, a few hundred soggy, jittery spectators crowded into the Supreme Court on Wednesday morning to witness oral arguments over President Donald Trump’s travel ban. The justices spent an hour debating the legality of a sweeping executive order that bars 150 million people from entering the United States. That almost all of these people are Muslim—and that the ban was advanced by a president who promised to enact a “Muslim ban,” under some flimsy pretext if necessary—seemed to be an afterthought. In fact, nobody seemed particularly alarmed or distraught by the constitutional implications of such odious discrimination, except perhaps Justice Stephen Breyer, who is always a little flustered. The court carried out its work with chilled efficiency, even banality, as if to prove that the third branch won’t get sucked into the drama that swirls around the president. Maybe the justices just didn’t want to appear too ostentatious in front of Lin-Manuel Miranda.
In truth, arguments in Hawaii v. Trump would have benefited from some theatrics. While most of us may be inured to it, the travel ban is still a devastating attack on immigrants whose only offense is having the wrong nationality and religion. Unfortunately, a majority of the court looks poised to uphold the ban by ignoring its genesis and deferring to a president who could not be trusted to take your Starbucks order, let alone set immigration policy. Trump’s enablers turned his Muslim-bashing campaign promises into law, and the Supreme Court seems eager to play along with this repeatedly bungled ruse.
The saga of Hawaii v. Trump began a week after the president took office, when he issued an executive order immediately barring citizens of seven Muslim-majority countries from entering the United States. Federal courts swiftly blocked that ban after its lawless implementation, so Trump issued another, very similar one, which the courts blocked again. In June, by a 6–3 vote, the Supreme Court let Travel Ban 2.0 take effect, but excluded individuals who had a “bona fide relationship with a person or entity” in the U.S. Three months later, after the expiration of the previous order, Trump issued a third order, or “proclamation”—the one at issue here—which in its current form, indefinitely bars citizens of seven countries, most of them majority Muslim, from entering the U.S.
Opponents of the ban argue that it violates both the Immigration and Nationality Act and the First Amendment’s Establishment Clause. Lower courts have agreed on both counts. The 9th U.S. Circuit Court of Appeals found that the order violated the INA’s prohibition on nationality-based discrimination in the issuance of visas, and exceeded the president’s authority to temporarily exclude a “class of aliens.” (Former Acting Solicitor General Neal Katyal, arguing for the plaintiffs, spent much of his time on this argument.) The 4th U.S. Circuit Court of Appeals has also held that the order ran afoul of the First Amendment’s Establishment Clause by disfavoring Islam, evaluating its text alongside Trump’s past anti-Muslim comments on the campaign trail and in office.
Justice Elena Kagan dug into the constitutional question with a hypothetical that cut to the heart of the matter. Solicitor General Noel Francisco argued that, under a 1972 decision called Kleindienst v. Mandel, the courts must uphold a law that excludes aliens so long as it has a “facially legitimate and bona fide reason.” But the plaintiffs point to a 5–4 decision from 2005, McCreary v. ACLU, which found that a government action violates the Establishment Clause if an objective “reasonable observer” finds that it favors or disfavors a certain religion. The conflict between Mandel and McCreary is key to this case, so Kagan said she wanted “to press on that a little bit.”
“Let’s say in some future time,” Kagan said, “a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency. And, in the course of that, asks his staff or his Cabinet members to issue recommendations so that he can issue a proclamation. … What emerges is a proclamation that says no one shall enter from Israel. Do you say Mandel puts an end to judicial review of that set of facts?”
Francisco told Kagan that “if his Cabinet were to actually come to him” and tell him that Israel posed a genuine national security risk, then “the president would be allowed to follow that advice even, if in his private heart of hearts he also harbored animus.” And here you have the government of the United States arguing before the Supreme Court that a ban on Jews would, under the right circumstances, be OK. Francisco at least gets points for honesty: He is absolutely correct that, under his position, a Jew ban dressed up in sufficient pretext should pass constitutional muster.
Justice Sonia Sotomayor picked up the thread. What if, she asked, this hypothetical president “says to his review committee, ‘I want to keep out Jews, period. Find a way.’ ” Could the courts evaluate the lawfulness of the resulting policy?
Francisco first told Sotomayor that “if any Cabinet member were given that order, that Cabinet member would refuse to comply or resign.” (LOL.) He then clarified that “if the president actually did” say he wanted to keep out “a particular religion,” that would “undermine the facial legitimacy of the action, even under the Mandel standard.”
Kagan pounced. If “the president had said, ‘we don’t want Muslims coming into this country,’ that would undermine the proclamation?” she asked. Francisco said yes. Kagan then asked if the president hasn’t already said “effectively that?”
Francisco should have known better than to take Kagan’s bait. But he recovered quickly, telling her that Trump’s campaign statements shouldn’t enter the analysis because they were made “before he [took] the oath of office,” which marked “the fundamental transformation from being a private citizen to the embodiment of the executive branch.” Then Justice Anthony Kennedy jumped in.
“Suppose you have a local mayor,” Kennedy said to Francisco, “and as a candidate, he makes vituperative, hateful statements. He’s elected, and on Day 2, he takes acts that are consistent with those hateful statements. Whatever he said in the campaign is irrelevant?”
“I would say yes,” Francisco responded, “because we do think that oath marks a fundamental transformation.” But he added that “here it doesn’t matter,” since “this is not a so-called ‘Muslim ban,’ ” because it only bans some Muslims, not all of them.
By halftime, the administration seemed to be in trouble. As soon as Katyal approached the lectern to attack the ban, however, Kennedy promptly changed tunes. When Katyal described the ban as “perpetual”—which it is, as it has no end date—Kennedy appeared irked.
“I thought it had to be re-examined every 180 days,” Kennedy said.
“No,” Katyal responded, “that’s not what it says. It says there’s a report that has to come in at 180 days, and nothing happens at the end of the report.”
“Well, that indicates there will be a reassessment, and the president has continuing discretion?” Kennedy asked. Katyal asserted that, under the INA, the exclusion of immigrants must have some time limit. Kennedy didn’t like that, telling Katyal, “So you want the president to say, ‘I’m convinced that in six months we’re going to have a safe world?’ ” Later, he asked Katyal whether his argument “is that the courts have the duty” to decide what constitutes a national emergency. “That’s for the courts to do, not the president?” It seems Kennedy does not want to acknowledge that, whatever deference a normal president might deserve in this field, Trump has shown over and over again that he cannot be trusted.
Breyer then asked Katyal about exemptions from the ban, which theoretically exist but are rarely granted. Katyal mentioned a 10-year-old girl from Yemen with cerebral palsy who was denied a waiver to receive treatment in the U.S. What possible reason could there be for this girl to considered be a national security threat? We never found out, as Justice Neil Gorsuch cut the exchange short, abruptly asking about the scope of the injunction that lower courts placed against the ban.
“We have this troubling rise of this nationwide injunction, cosmic injunction,” Gorsuch said, calling it a “new development” and asking: “What do we do about that?”
Katyal slyly pointed Gorsuch toward the 5th U.S. Circuit Court of Appeals’ decision blocking President Barack Obama’s deferred deportation program, which found that nationwide injunctions are necessary in the immigration context to ensure a “uniform rule of naturalization.” (SCOTUS affirmed that decision by a tied vote.) Katyal might have also pointed Gorsuch toward the many times that conservative judges purported to block the Obama administration’s policies through a nationwide injunction. It will be interesting to see if Gorsuch remains troubled by the practice the next time a judge blocks a law that he doesn’t like.
In the end, the justices seemed divided as usual: The liberals assailed the travel ban; the conservatives mostly defended it; Kennedy wavered, but tilted right; and poor Breyer seemed to try to broker some compromise, presumably with Kennedy, as he sipped anxiously from a small ceramic mug. Maybe Breyer will succeed, behind the scenes, in crafting a trade-off that bolsters exemptions from the ban but allows it to stand as a whole. Or maybe Kennedy will halt out of his rightward lurch and recognize the true intent of Trump’s order.
But the most likely scenario continues to be a victory for the Trump administration. For Kennedy to swing left in this case, he’d need to recognize the extraordinarily high stakes and the ruinous impact it has on millions of lives. Instead, he treated it like an ordinary day at work.
At the end of arguments, a frustrated Sotomayor asked Francisco if he’d even “bothered to look to see if there are reasons” for denying so many exemptions. It was an uncomfortable moment, but a deeply human one—which Kennedy broke off to change the subject. To the liberals, the ban’s victims are real people whose grave suffering matters. To the conservatives, they’re a mere obstacle to giving Trump what he wants: judicial deference to a president who has done nothing to deserve it.
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