The Trump administration’s travel ban finally reaches the U.S. Supreme Court Wednesday, posing enormous questions involving the structure of the American government and the values of the country.
At issue is the third version of the ban — which the president has complained is a “watered down” version. The court allowed it to go into effect while the case was litigated, but the lower courts have ruled all three versions either violate federal law or are unconstitutional.
Like the earlier two bans, version 3.0 bars almost all travelers from six mainly Muslim countries, and it adds a ban on travelers from North Korea and government officials from Venezuela.
The questions in the case are the stuff of history:
- Can the courts even review a presidential order on immigration that invokes national security?
- Did the president violate the immigration law’s command against discrimination based on nationality?
- And does the executive order violate the Constitution’s ban on religious discrimination?
The travel-ban argument will be the last of the term. And the importance of the argument is not lost on the court. For the first time since the same-sex-marriage arguments in 2015, the court is allowing same-day distribution of the session’s audio. Nonetheless, people started lining up at 7 a.m. Sunday in hopes of snagging a seat Wednesday.
The court itself will be under extreme pressure. There are only about two months left in the term and an unusually large number of cases yet to be decided.
Moreover, one of the justices is playing hurt. Justice Sonia Sotomayor is continuing to work despite extreme pain from a broken shoulder. She is expected to undergo shoulder-replacement surgery some time next week, after all arguments for the term are completed.
Can the court consider Trump’s anti-Muslim rhetoric?
At Wednesday’s argument, those challenging the ban are being represented by lawyer Neal Katyal, who has argued landmark cases in the Supreme Court both for and against executive power in the context of national security.
“It’s unconstitutional. It’s unnecessary. And most of all, it’s un-American,” he maintained.
But before he can make that case, he will have to deal with the government’s first argument — that foreign nationals outside the U.S. have no constitutional rights, no right to litigate in U.S. courts and that the courts have no power to review the president’s ban.
The Supreme Court has said on many occasions that when it comes to national security, the executive need only come up with “a facially legitimate, bona-fide reason to keep certain people out of our country,” said John Malcolm, vice president of the Institute for Constitutional Government at the conservative Heritage Foundation.
In short, the government argues that as long as it gives reasons for the ban, the courts are not to look behind those reasons to see whether there is evidence to justify them.
“The president gets daily classified briefings,” Malcolm said. “Judges do not.”
But those challenging the ban note that the Constitution gives exclusive power over immigration to Congress, and that Congress in 1965 banned discrimination in immigration based on nationality.
The government contends that the president’s order does not discriminate on the basis of either nationality or religion.
But that argument runs up against repeated statements and tweets Trump made during his presidential campaign.
At a 2015 rally, for example, Trump declared, “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States …”
Once Trump became president, however, he stopped using such categorical language, while at the same time linking the travel ban to his campaign statements. In February of last year, for instance, he castigated a federal judge for blocking the first version of the travel ban. Declaring that he would not back down, the president said, “I keep my campaign promises.”
“The president has his intemperate moments,” acknowledged the Heritage Foundation’s Malcolm. “But he has said what we are targeting are not Muslims, but jihadists.”
There are, in fact, 51 majority-Muslim countries, and the government maintains that the travel ban is targeting only those that are points of vulnerability, either because they lack the ability to verify the identity and background of those seeking to enter the U.S. or they have not cooperated with the U.S. government or are “safe havens of terrorism.”
“Does the president use the kind of language that plays well in a courtroom? No, I don’t think so,” Malcolm conceded. “But it is the president and not the judiciary that is given primary responsibility for protecting our homeland.”
Gen. Michael Hayden: “It actually made us less safe”
Making the contrary argument, however, are not just those directly challenging the travel ban, but an astonishing array of former national security experts, who have served in Republican and Democratic administrations alike, as well as more than two dozen retired top generals and admirals.
In several friend-of-the-court briefs, they argue that the travel ban not only violates American law but has harmed national security.
“It actually made us less safe,” said Gen. Michael Hayden, who served as director of the National Security Agency from 1999-2005 and then CIA director from 2006-2009.
In an interview with NPR, Hayden said that since the travel ban went into effect, he has gotten calls from CIA officers still in government. They tell him the ban is making it far more difficult to recruit “assets” and spies, which makes it much harder to get information in the targeted countries — locations that are essential to the fight against ISIS and radical Islam.
“Just think of the impact of a pronouncement from the American government,” Hayden said — you are trying to recruit people to help the country, telling them the U.S. government will protect them, but that they won’t be allowed to come to the United States.
By doing that, the former CIA director said, “You have taken off the board the last sanctuary that the case officer uses to help recruit someone.”
The national security experts, who have filed briefs in the case opposing the travel ban, note that no individual from any of the banned countries has committed a terrorist act on U.S. soil in the last 40 years.
Hayden added that the U.S. has often had more trouble with Belgium in reporting on jihadis seeking entry to the U.S. than it has had from any of the countries in the ban.
Joining Hayden in signing a series of briefs opposing the travel ban are more than 55 former CIA and deputy CIA directors, counterterrorism chiefs, top diplomats with long records in the Middle East, secretaries of state and even the Republican chairman of the 9/11 Commission.
They support the challengers’ argument that the president has exceeded his authority in enacting the ban.
This wolf “comes as a wolf”
Expanding on that theme, lawyer Katyal maintained that immigration is exclusively the business of Congress under the Constitution.
Echoing themes in his brief, he said, “Our founders put Congress in the driver’s seat, the exclusive driver’s seat in Article I of our Constitution, for a reason.”
They were angry about King George III abusing his immigration powers, Katyal said, and they concluded, “These decisions are too important to be left to the decision-making of one man.”
But the Trump administration in its brief counters that Congress has, by statute, given up some of that power.
“Congress has explicitly, by statute, given the president the authority to exclude any aliens or class of aliens when he believes that not doing so would be detrimental to the interest of the United States,” Malcolm said.
Katyal argued that no provision of the Immigration and Naturalization Act gives the president the power to override the immigration act’s ban on discrimination based on nationality. His brief quotes the late Justice Antonin Scalia in addressing which branch of government can do what.
In a 1988 dissent, Scalia wrote that threats to the Constitution’s separation of powers usually come disguised in sheep’s clothing. But this wolf, said the justice, “comes as a wolf.”
And so it is in this case too, Katyal said. When you read Trump’s executive order and his statements about it, he said, it’s clear what they are: “They are wolves coming as wolves.”
A decision in the travel ban case is expected in late June.