To some of who have completely lost legal argument in sentimental rhetoric, Wednesday’s oral arguments at the Supreme Court in Trump v. Hawaii were about Trumpness versus goodness and niceness. “At stake is the meaning of America,” tweeted Harvard’s Prof. Laurence.
But really, the case is about the power to exclude foreign nationals, the distribution of that power between Congress and the executive branch, whether the president violates a statute when he uses powers given him under that statute, and last but perhaps not least, whether courts should be involved in such a case at all.
There is also about freedom of religion—something worth shoutinig about—but whether it is at stake here is something the anti-“travel ban” side has to prove: That relevance can’t be taken for granted, given the preponderance of Muslim countries that are not covered by the ban, and one, Chad, that has been removed from it.
The power to regulate categories of foreign nations eligible to enter the U.S. is, like other national security powers, divided under our Constitution. The only branch that has no share in it is the judiciary. So naturally, would-be listeners started queuing up outside the Supreme Court over the weekend for Wednesday morning’s oral arguments.
Congress already prohibits certain types of malefactors from entering the country. In addition, Congress has given to the president power to add to Congress’s list. Congress’s prohibitions are based on behaviors, while President Trump’s are nominally based on nationality. But remember that Trump’s no-no nations incur that status through the behavior of their governments and nationals. So his list, too, can be said to be based on behavior.
Skeptics think Trump’s criterion is likelihood that the immigrant will prove to be a terrorist, and that the marker of this suspicion is Islam. That leaves unexplained why most of the world’s majority-Muslim nations are not on the list, and why nations that change their behaviors, e.g. by improving the “vetting” on their end, like Chad, have been dropped from the list.
The first point made Wednesday by Solicitor General Noel Francisco was that the president was acting within a broad congressional authorization. Justice Ruth Bader Ginsburg intervened early, asking about the executive-empowering clause, 8 USC 1182(F):
Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.
“[T]he worrisome thing about this,” Justice Ginsburg pointed out, “is that the president acts; Congress is the one responsible for making the laws about immigration.” Yes, except where is doesn’t: where it recognizes the special competence in the executive for “[d]ecision, activity, secrecy, and despatch,” according to Federalist 70.
As Francisco put it at oral argument: “1182(F) is a broad and flexible power in a narrow area. Here, however, I think that you don’t need to explore those outer limits because the proclamation’s meant to help implement the INA [Immigration and Naturalization Act] by making sure that we have the minimum level of information needed to determine if aliens are admissible under the INA.”
This was a constant theme from the solicitor general: the U.S. does not need a proclamation based on religion: It needs to guarantee a level of scrutiny, either by the country of origin, or by our consular officials. Nothing to do whether countries are Muslim-majority, and everything to do with whether countries that do or do not “vet.”
Congress has placed some anti-discrimination parameters around the president’s power to exclude, and it can add more; but within these, the president’s power is plenary. There controversy here because, to put it broadly, this is Trump; to put it more specifically, in this case the president issued tweets before and after the proclamation, and these are said to place the president’s actions outside the normal range of deference, even without Congress saying so.
The challengers, represented by President Obama’s former acting solicitor general, Neal Katyal, one of Washington’s most respected appellate advocates argued that there was an Establishment Clause violation, since the tweets show that Trump acted with “animus” (a vague but increasingly widespread term in constitutional law) against Islam. Or, as Justice Kennedy pointed out, it might be a Free Exercise violation, if the court finds that the government is excluding selected nationals based on their desire to practice their religion in our country.
Also at stake is the prospect of the judiciary looking into executive-branch foreign policy decisions to see why they were made, a real distortion of the tripartite system
You don’t have to be a big fan of Trump’s restrictions on incoming travel to see in this case as an attempt by the federal courts and activist litigants to limit a legitimate executive power. Not since the detainee cases of the 2000s have courts attempted to drive so far into a matter that is the joint concern of the other two branches.
Pursuing the religion angle, Justice Kagan asked Francisco an interesting question: Suppose a politician with a record of anti-Semitic statements, in office as well as before, ordered his top foreign policy and law enforcement appointees to draw up a proclamation to ban immigration from Israel?
Francisco basically divided that hypo into two separate ones: 1) Suppose here is no basis except unreasoning hatred behind the president’s action. Answer: the appointees would have to urge him against his plan, or resign. They too took an oath to defend the Constitution. 2) Suppose there actually is a threat emanating from Israel. Answer: the appointees should help, the proclamation would have an adequate constitutional and statutory basis, at least for the duration of the emergency—and the courts are singularly ill-equipped either to determine the reality of the emergency or to tell when it is over.
Is this really a case about the powers of a U.S. president, or is it about the powers of this one, diminished the tweets? Can a power normally belonging to a U.S. president be tweeted away?
It would be uncharted territory for the court to hold that presidents in general may do X, but some particular president may not, because of behavior Y. This would constitute the federal courts as full-time classroom monitors over presidents, declaring their otherwise-undoubted powers void if they are being naughty.
Chief Justice Roberts’s first intervention suggested he has judicial modesty and abstentionism on his mind. He started modestly, asking Francisco: “Is your consular non-reviewability argument—is that a jurisdictional argument?”
Perhaps Roberts was disappointed that Francisco had not introduced it earlier. But the SG made up for lost time: “Yes, I think it is a jurisdictional argument. And that’s why I don’t think you really should address any of these issues. The basic rule is that the exclusion of aliens is a political act imbued with foreign policy and national security concerns.” The expression “political act” is a magic word with roots in Marbury: It names acts that are not judicially reviewable, for which the president is “answerable only in his political capacity.”
In questioning Katyal, Justice Kennedy also pursued the judicial modesty theme: “And your argument is that courts have the duty to review whether or not there is such a national contingency; that’s for the courts to do, not the president?” Katyal had to reply: “No. I think you have wide deference, Justice Kennedy.”
The chief justice continued this line of attack: “The president may have more particular problems in light of particular situations developing on the ground, and, yes, Congress addressed the question of the adequacy of vetting, but those questions arise in particular contexts. And it seems to me a difficult argument to say that Congress was prescient enough to address any particular factual situation that might arise.”
Katyal ably pointed out crises that are realistic and that Congress has already provided for, diminishing to the need for presidential flexibility under 1185(F). But his argument did point to a narrowing of that flexibility and a corresponding broadening of the judiciary’s supervisor power over how the President uses his foreign-policy powers.
Even Justice Kagan hit the judicial-competence note in questioning Katyal: “[Y]ou have a proclamation that says there are important national security interests at stake. And the question is how to do the kind of analysis that you want us to do without in some sense evaluating the adequacy of those national security interests, which for the most part we’ve said courts are not equipped to do.”
She was talking particularly about reviewing presidential national security decisions on religious liberty grounds, but the same concern about judicializing national security, shown by other justices, is apparent here.
Katyal replied, as he had several times, that the religious aspect of this case is a lot like Church of Lukumi Babalu Aye v. City of Hialeah. But in that case, the discrimination against a minority religion was perfectly tailored to disadvantage the disfavored group in every possible respect short of banning it, while having no effect on any other religion. Here, while it is true that all the nationalities targeted are majority-Muslim, the vast majority of the world’s Muslims are not covered by it.
Justice Gorsuch, who did not question Francisco at all, raised with Katyal the issue of “nationwide injunctions,” as have previously been issued by district courts in this case. They may sound obvious, but they are not. It may seem natural that if an act of government is unconstitutional in one judicial district, it must be unconstitutional nationwide. But this ignores the principle that the jurisdictions of federal judges (below the Supreme Court) are limited by place as well as by subject matter. The law reports groan with district judges expressing regret that their injunctions can’t extend even beyond the parties before them. Such was also the constitutionalism of Abraham Lincoln in his first inaugural: the infamous Dred Scott decision had to be respected as regards those who were parties to it, but it cannot be allowed to set a permanent, nationwide rule.
In sum: Roberts seems attracted by a judicial abstentionism theory. Kennedy and Kagan seemed impressed by it too, though it’s hard to imagine them both ruling that way. Expect a separate opinion by Gorsuch if the majority does not adequately address—meaning, condemn—nationwide injunctions.
Finally, it’s hard to see how “travel-ban” critics get to five votes on this. The lower courts that struck down this ban or its precursors leaned heavily on the argument that “we know this is just bigotry because of the tweets.” That argument gained no traction in the Supreme Court on Wednesday. The court was interested in whether there could be a “the president/this president” split in presidential power, but did not seem inclined to declare one.
