Law & the Courts

Will the Supreme Court Join the #Resistance?

A protestor holds a sign and the American Flag as demonstrators gather to protest against President Donald Trump’s travel ban in Philadelphia, Pennsylvania. (Tom Mihalek/Reuters)
As the justices prepare to decide the fate of President Trump’s so-called travel ban, the question looms large.

On Wednesday the Supreme Court will hear oral arguments in the Trump “travel ban” case, and the core issue will be stark and clear: Do laws mean what they say?

Of all the thousands of pundits who have weighed in on the various iterations of Trump’s executive orders on immigration, Washington Post Supreme Court reporter Robert Barnes summarized the dispute better than anyone: To decide the case, the justices will consider “the president” versus “this president.”

In other words, the case hinges on whether Donald Trump’s words and actions are so egregious that the Supreme Court should depart from settled law and create new precedent specifically designed to rein him in. That is the essence of what I last year called “Trumplaw,” a series of unique legal decisions that are grounded not in law or precedent but instead in fear and #resistance. While there are many examples, perhaps none is more obvious than the judicial war on Trump’s travel ban.

To understand the legal stakes, one must first understand the law. Congress has delegated sweeping powers to the president to bar entry to aliens or a class of aliens:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

We can and should debate the wisdom of this statute — my own view is that it represents yet another unwise abdication of congressional authority to the executive branch — but its language is clear. And when the delegation of congressional authority over immigration is clear, judicial deference is required, even if fundamental constitutional rights are at stake.

For example, read Kleindienst v. Mandel. In that case, the Supreme Court rejected claims from a collection of scholars that the government was required to grant entry to a Belgian Marxist journalist. Previous law banned entry to those who advocated or published “the economic, international, and governmental doctrines of world communism.” Communist speech is every bit as protected under American constitutional law as the free exercise of the Muslim faith. Yet the Court still upheld the journalist’s exclusion:

We hold that, when the Executive exercises [its] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Under this principle, the Court’s authority to review the travel ban is extremely limited. Look at the face of the document. Does it provide “legitimate and bona fide” reasons for its actions? If so, the inquiry ends.

It is not the judiciary’s job to determine whether the travel ban is the right response to instability, hostility, and terrorism in the targeted countries.

And, make no mistake, the travel ban outlines the reasons for its prohibitions. It’s not a “Muslim ban.” Instead, it lists problems with the policies, practices, or stability of specific, defined countries (not all are Muslim) that create specific national-security threats — and then it limits immigration from those countries to varying degrees depending on the extent of the danger they each pose. For example, the travel ban suspends entry of all immigrant and nonimmigrant North Korean and Syrian nationals, but other countries face only suspensions of certain types of business and tourist visas. Moreover, even the blanket bans are subject to exceptions and waivers.

It is not the judiciary’s job to determine whether the travel ban is the right response to instability, hostility, and terrorism in the targeted countries. It’s not the judiciary’s job to even evaluate the level of threat. The Supreme Court is not an unaccountable, omnipotent national-security council, and it’s certainly not the president’s conscience. It can’t and shouldn’t hunt for bad-faith motivations for otherwise entirely lawful policies.

In a vigorous dissent from a Fourth Circuit ruling against Trump’s second travel ban, Judge Paul Niemeyer accurately outlined the problems with judicial overreach:

In looking behind the face of the government’s action for facts to show the alleged bad faith, rather than looking for bad faith on the face of the executive action itself, the majority grants itself the power to conduct an extratextual search for evidence suggesting bad faith, which is exactly what three Supreme Court opinions have prohibited. Mandel, Fiallo, and Din have for decades been entirely clear that courts are not free to look behind these sorts of exercises of executive discretion in search of circumstantial evidence of alleged bad faith. The majority, now for the first time, rejects these holdings in favor of its politically desired outcome.

Here, the search for bad faith is even more egregious. After all, the evidence is unequivocal that Trump backed away from his promised Muslim ban. He reversed course. Yet his opponents in the judiciary now argue that his initial statements taint and forever tar every one of his immigration policies — or at least the ones that they dislike.

Is there a credible statutory objection to Trump’s travel ban? Is there a legal danger to Trump’s policy that doesn’t rely on the distortions of activist “Trumplaw”?  Yes, there is, but it’s not sufficient to defeat Trump’s policy. While federal immigration law grants the president sweeping power to bar “any class of aliens” if the president finds that its members’ entry is “detrimental to the interests of the United States,” immigration law also prohibits discrimination on the basis of “nationality” in the “issuance of an immigrant visa.”

So, how do you square the circle? This, at least, is a conventional statutory argument. The text of the travel ban makes clear that it is being implemented not because of the nationality of the immigrants, but because of the actions of their governments or the instability of their countries. By its own terms, the travel ban describes the specific deficiencies of the nations at issue, thus providing a clear path for a remedy.

To read the nationality non-discrimination provision as broadly as the administration’s opponents demand would lead to nonsensical results. It would mean that no matter the instability, irresponsibility, or hostility of a national government, the executive branch couldn’t take steps to impose extra scrutiny or block immigration — even in the face of known danger. Fortunately, this is not the law. As the statutory scheme makes clear, when the national interests of the country are at stake, “any class” of aliens means “any class.”

Tomorrow’s oral argument will be interesting indeed. To what extent will the judges focus on the relevant statutes? To what extent will they ask about Trump’s tweets? The answers to these questions will go a long way toward suggesting whether the Supreme Court will follow the law or decide that “this president” should be treated differently than “the president” and join the judicial #resistance.


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