President Donald Trump had a good day at the Supreme Court on Wednesday in the “travel ban” case involving immigrants from terror-prone nations, as a majority of the justices seemed to signal their agreement with the president’s lawyers on key points.
Wednesday’s oral arguments were the climax of an epic legal struggle that began during the president’s first week in office, when he signed Executive Order 13769 to enact “extreme vetting” for immigrants entering this country, later replaced by Executive Order 13780. Both of those interim measures were superseded by Presidential Proclamation 9645, banning entry into the United States from seven terror-prone nations, subject to case-by-case waivers from the State Department.
Congress, through federal law 8 U.S.C. § 1182(f), empowers the president to “suspend entry” by “proclamation” for “any aliens or class of aliens” he finds would be “detrimental to the interests of the United States.” President Trump’s September 27, 2017, proclamation is such a measure. Liberal-leaning majorities on a couple federal courts blocked the president at every turn.
The Supreme Court is tackling four issues: (1) whether the courts even have authority to decide this matter; (2) whether the proclamation is permitted by the central federal immigration law, the Immigration and Nationality Act (INA); (3) whether the policy violates the Constitution’s Establishment Clause; and (4) whether the trial court’s worldwide injunction in this case is overbroad.
“After a worldwide multi-agency review, the president’s acting homeland security secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline information needed to vet their nationals,” U.S. Solicitor General Noel Francisco began at the Supreme Court on behalf of the Trump administration. “The proclamation adopts those recommendations. It omits the vast majority of the world, including the vast majority of the Muslim world, because they met the baseline.”
Congress in the Immigration and Nationality Act (INA) defines which aliens can be admitted into this nation. Francisco explained that this baseline is providing sufficient information to make an “intelligent decision” as to whether a person can be allowed into the United States under the INA.
Comparing it to immigration proclamations by President Jimmy Carter regarding Iran and President Ronald Reagan regarding Cuba, Justice Anthony Kennedy remarked that President Trump’s Proclamation 9645 gave much more detail on why the government concluded each impacted country posed a safety risk.
Francisco agreed, informing Kennedy that “This is the most detailed proclamation ever issued in American history.”
Justice Elena Kagan pushed back, saying that the government argued that by raising national security, any legal challenge would be “game over,” and asking about a hypothetical president who might get “elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews,” and trying to keep all Jewish people out of the country.
Francisco responded that Cabinet officers would never give a president recommendations that would lead to such a far-fetched situation, and instead would resign before implementing a “plainly unconstitutional order.” He also said such an order would be facially illegitimate, and therefore could be challenged.
One item on which the challengers may score a point is trying to include Trump’s campaign statements as evidence. Kennedy balked, saying that if someone running for a local mayor makes “hateful statements,” then the next day gets elected and takes office and then acts consistent with those statements, that “whatever he said in the campaign is irrelevant?”
Francisco explained that Proclamation 9645 is “not a so-called Muslim Ban,” saying, “It would be the most ineffective … one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.”
Chief Justice John Roberts sharply questioned Supreme Court heavyweight Neal Katyal when he took the podium representing Hawaii and the challengers, asking if the president could unilaterally block all entry from Syria for a full week if he believed someone entering that week was carrying chemical weapons.
Katyal responded that such a move would be okay, but this policy cannot be compared to that because President Trump has had a year to get Congress to address the real-life situation through legislation.
Roberts skeptically shot back, “Imagine, if you can, that Congress is unable to act when the president asked for legislation.” The courtroom burst into laughter in America’s current hyper-partisan gridlock.
“Congress did act,” Justice Samuel Alito hit back against Katyal. “It enacted 1182(f).”
Kennedy also appeared to reject a key part of Katyal’s argument – that 1182(f) proclamations cannot be permanent policy that may usurp Congress’s role – by noting that the proclamation says it will be reexamined every 180 days, and that § 1182(f) specifies they can last “for such period as he deems necessary.”
If the Court holds that President Trump’s proclamation is authorized by the INA, it will then reach the issue of whether Proclamation 9645 violates the Establishment Clause of the Constitution, which forbids Congress from establishing an official national religion. Hawaii argues that the proclamation officially discriminates against Islam, and therefore is unconstitutional.
Pushing back against Katyal’s arguing for a liberal Establishment Clause standard in this case, Alito said with obvious skepticism, “Would any reasonable observer reading this proclamation, without taking into account statements, think this was a Muslim ban?”
Justice Neil Gorsuch went further, noting that “It’s been a long time since this Court has used the Lemon test [meaning the reasonable observer test or “endorsement test”],” possibly suggesting that he was reluctant to revive that test developed by a much more liberal Supreme Court majority decades ago, and applying that test in a new context.
Gorsuch also went after the district court’s issuing an injunction blocking Proclamation 9645 everywhere on earth. America is divided into 94 judicial districts, and typically a trial court can issue an order that is only broad enough to address the parties in the case. Here, the judge blocked President Trump’s policy everywhere.
The Court’s newest justice expressed deep concern about how that has been done repeatedly since President Trump’s inauguration, saying, “We have this troubling rise of this nationwide injunction – cosmic injunction.”
Katyal did not even defend what many characterize as a judicial power-grab, saying, “I share your impulse, Justice Gorsuch.”