The transcript of the travel-ban oral argument is now public, and while all the standard caveats apply regarding predicting case outcomes from oral arguments, it’s safe to say the Trump administration feels more confident today than its legal opponents. I agree with SCOTUSblog’s Amy Howe — the administration may well win a “solid majority,” possibly even pulling in Justices Kagan and Breyer.
I must confess, however, that Hawaii’s attorney, Neal Katyal, demonstrated why he’s an outstanding Supreme Court advocate. He did his dead-level best to transform the legal equivalent of a sow’s ear into a silk purse by keeping the bulk of his argument focused on the relevant statutes, focusing not just on congressional prohibitions against nationality-based immigration bans but also on previous congressional responses to state sponsors of terror.
But even the best advocates can labor to explain away controlling law, and the simple fact remains that Congress delegated breathtaking authority to the president. Here’s the relevant language:
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.
It’s fair to ask whether this statute is prudent (it’s not) or whether it represents an improper abdication of congressional authority (it does). But its scope is crystal clear. It can apply to “any” alien or “any” class of aliens, and for a time period defined entirely by the president. It is difficult indeed to look at Trump’s travel ban and conclude that it doesn’t fall squarely within the bounds of this considerable delegation of authority.
The more liberal members of the Court were clearly troubled by the extraordinary scope of the statute and pressed the solicitor general with hypothetical questions involving an obvious abuse of authority (like an anti-Semitic president banning entry of Israeli nationals), but these hypotheticals mainly highlighted the flaws in the statute, not the illegality of Trump’s order. The statute really is that broad. It really can empower bad acts.
But it is not the Supreme Court’s job to police congressional enactments for prudence or to purge executive orders of any hint of impure motive. Today, a majority of the Court indicated that it was ready to do its real job — apply the law to the facts. And when it does, it’s highly likely that the Trump administration will emerge victorious.