There are other issues in the case, but ultimately the ban will rise or fall based on whether the court believes that the ban is anything other than anti-Muslim animus.
 |
| James Lawler Duggan/Reuters |
By Jay Michaelson, The Daily Beast
On Wednesday, the Trump travel ban returns to the Supreme Court again.
This time, the case is called Trump v. Hawaii,
and it is about the third version of the ban that was issued in
September 2017, after previous versions were suspended, limited,
partially allowed, and put on life support by the Supreme Court and lower courts.
Unlike
previous cases, this one about the substance of the ban, not an
injunction limiting its application. And the ban itself is intended to
be semi-permanent, unlike the 90-day versions from past cases.
There
are two major issues in the case, one based on immigration law and the
other based on the Constitution. Both are highly ironic.
The first
major issue in the case is whether the ban exceeds Trump’s executive
power. Unsurprisingly, the same conservatives who decried President
Obama’s “imperial presidency”
are now defending Trump’s imperial order. Then, creating a priority
list for deportations (DACA) was said to be a vast excess of
presidential power. Now, completely throwing out the statutory system
for visas is said to be within presidential power.
Hawaii says
that while the president can block a limited “class of aliens” from
coming to the United States, 150 million people from eight countries do
not constitute such a class. They also argue that the plan violates
immigration law, which prohibits discrimination on the basis of
nationality.
The
government, once again, says that the president can basically do
whatever he wants when it comes to immigration and national security.
The second major issue is whether the ban violates the Establishment
Clause by disfavoring one religion, Islam, over others. Here, once
again, Hawaii and liberal groups point to Trump’s numerous statements before he was president proposing a ban on Muslims from entering the United States, which is blatantly unconstitutional,
as well as the history of the order’s revisions as a transparently
obvious effort to slide the ban through on facially neutral grounds.
The
Trump administration has admitted that a “Muslim ban” does not pass
constitutional muster. So, they instead counter that this isn’t one.
They note that the September ban also prohibits Venezuelans and North
Koreans from entering the U.S.; that there was an inter-agency review of
security threats; that these are particularly war-torn and
terrorism-prone countries; and that there are many large Muslim
countries that are not included (e.g. Malaysia, Saudi Arabia). All this,
they say, proves that the ban is based on national security, not
religion. Never mind what Trump said during the election.
So, hypocrisies notwithstanding, how is the Court likely to rule?
Of
course, with a case as contentious as this one, it’s difficult to
predict—but don’t look for the Court to split on partisan lines. The
four more liberal justices will almost surely reject the ban as an
unconstitutional display of religious animus. But when it comes to the five conservatives, cases like these are tricky.
First, it’s unlikely that the Court’s judicial conservatives—Roberts and Gorsuch in particular—will be enamored of granting the executive branch so much power. For his part, Justice Gorsuch
has expressed skepticism of deferring to administrative agencies, a
bedrock of administrative law. Of course, the president is due deference
in evaluating matters of national security—but is deference the same as
a blank check?
There is really no precedent for the travel ban. President Carter
suspended visitors from Iran, and President Reagan those from Cuba, but
those were far more limited, and tied to specific state actions on the
parts of both countries. This would be an unprecedented expansion of the
power of the executive branch.
Roberts in particular seems
acutely aware of the Supreme Court’s status and legitimacy at this
moment in history. In that regard, the travel ban case looks a lot like Korematsu v. U.S.,
in which the Supreme Court allowed the executive branch to put 120,000
Japanese Americans in internment camps from 1942-45—and that was on the
basis of a far more articulate national security rationale than the
travel ban.
Korematsu is widely regarded as a low point in
the Court’s history, a time when the Supreme Court failed in its role
to protect the individual rights of a vulnerable minority. Trump v. Hawaii could well be seen similarly, something Chief Justice Roberts and Justice Kennedy are surely concerned about.
To
be sure, a travel ban on non-citizens is very different from the
internment of citizens. But the administration’s post hoc
rationalizations for the ban are so flimsy, and its addition of
Venezuela and North Korea so transparently clear, everyone knows that
it’s really a ban on Muslims, fulfilling a campaign promise that had
more to do with populist xenophobia than with a dispassionate assessment
of national security threats.
Beyond the more technical
claims—in addition to the question of executive power, there are thorny
legal questions regarding whether the Court ought to hear this case at
all, and whether it can strike down the ban everywhere given that only
Hawaii is a party to this case—the case will really rise or fall based
on how seriously the Court takes the Trump administration’s rationales.
Unlike
the earlier bans, a team of government lawyers has done its best to put
lipstick on the pig. If you stick to the reasons they set forth, then
the travel ban isn’t unconstitutional. But if you just play this twenty-second video,
in which the now-president said “Donald J. Trump is calling for a total
and complete shutdown of Muslims entering the United States,” it’s
pretty clear that what’s beneath the lipstick is bigotry.
COMMENTS