Diary

The Last Week of Oral Arguments: The Travel Ban Case in the Crosshairs

Next week marks the end of the 2017-2018 Supreme Court term as far as oral arguments are concerned.  We are waiting on some important decisions which will likely be handed down in May or June. Among those decisions we are waiting on are:

  • Three decisions that may affect how Congressional districts are apportioned and the future of political gerrymandering;
  • The so-called gay wedding cake decision;
  • A decision on the future of union agency shop fees and union dues;
  • The sports betting case out of New Jersey;
  • How and under what circumstances states can purge voter rolls;
  • The free speech case involving abortion signs required by the state out of California, and;
  • State taxation on Internet purchases.

There is still one important case to be heard this week- Trump v. Hawaii, or the travel ban case.  This case addresses four questions:

  1. Whether the suit brought by various states can even be heard by any court;
  2. Whether the travel ban targeting specific countries is a lawful exercise of a President’s power;
  3. Whether the lower court injunction against the travel ban was overly broad, and;
  4. Whether the travel ban violates the Establishment Clause of the First Amendment.

Questions 1 and 2 may go hand-in-hand.  The government contends that courts should not question Congress or the President’s decisions regarding the entry of non-citizens into the United States.  The Court in the past has ruled in this area as it involved U.S. citizens, but the government contends, correctly, that is not the facts in this case at all.  Hawaii and the other states involved are arguing that they are harmed by the ban on entry by non-US citizens. If the Court agrees with the government on this issue, then there is no need for the Court to go any further on the merits of the case.  In effect, the issue could be ruled beyond the purview and power of federal courts to intervene in these decisions UNLESS it involves a United States citizen. In fact, previous rulings in this case left the level of that involvement rather ambiguous.

Assuming the courts can wade into this area, they then must answer whether the travel ban is a lawful exercise of Presidential power.  Current immigration law certainly allows the Executive branch to ban entry of certain classes of individuals from various countries. In this case, Trump has listed, in effect, a moratorium on entry of all individuals from specific countries.  The reason cited is national security concerns and the inability of those countries to provide the US with adequate information regarding applicants for visas in those countries. These countries are either belligerent countries with animus towards the United States, riddled with terrorist activity, or have barely functioning “governments” (Libya and Yemen).  

The states involved concedes the President has the authority to ban entry of certain classes of aliens, but that the blanket ban listing countries is so broad that it violates the legislative scheme of immigration laws.  They argue that it affects over 150 million people who share nothing but nationality. The argument is ironically hypocritical on its face. These are the same states and special interest groups who had no obvious problem with Obama exceeding his authority with DACA (although a potential 800,000 people is certainly less than a potential 150 million).

In one breath, they argue that the travel ban in too broad, yet in another breath they argue that the court’s injunction- which barred enforcement of the ban worldwide- was not overly broad.  In other words, the President cannot issue a ban covering a potential 150 million aliens, but a federal court can issue an injunction affecting a potential 3 billion people. In fact, provided the applicant, even from those countries listed by Trump, are properly and adequately vetted for a visa, they are granted that visa.  In many of these countries, including Venezuela and North Korea, the United States has thread-bare diplomatic resources (if any) to do the vetting. Are they to be left to accept the word of belligerent governments, or what barely passes for a government (Libya, Yemen, Syria)?

There is further hypocrisy in Hawaii’s argument that the ban must be enforced nationwide at a minimum.  That argument, expressed in their brief, states that to do otherwise and limit it only to states that can prove a “harm” would result “in the splintering of immigration enforcement.”  Yet, Hawaii and other like-minded states, have no problem with establishing themselves or allowing their political subdivisions to declare “sanctuary” status for illegal immigrants. Apparently it is just fine to “splinter” immigration enforcement in one area, but not another.

The final question addresses the Establishment Clause.  Here, the plaintiffs rely on the campaign rhetoric of Trump to bolster their case.  Certainly, Trump did make references to a “Muslim ban” during the campaign and afterwards, but was this animus against a religion, or against members of a particular religion who happened to present a national security risk?  It must be remembered that although the original travel ban was against countries with Muslim majorities, it did not involve many more Muslim-majority countries. For example, countries like Egypt, Saudi Arabia, and Indonesia were not affected.  Why not? Because although there may be terrorist activity in those countries, it rises nowhere near the level in the listed countries. Secondly, the non-listed countries have functional governments that cooperate with the US in the vetting of visa applicants.

The plaintiffs argue that the underlying purpose of the ban was an animus by Trump against Muslims.  They argue that in the original ban, exceptions were made for persecuted Christian minorities living within the listed countries.  They argue that taken together- the listed countries, the campaign comments, and the original Christian-minority exception- the ban violates the Establishment Clause.

As for the campaign comments, the government argues that a court cannot engage in “judicial psychoanalysis of a drafter’s heart of hearts.”  Regarding the religious minority exception, they argue the ban at issue removed that exception and is therefore moot. As for the listed countries, the fact they are Muslim-majority in no way changes the fact they are barely functioning governments or ill-equipped or resistant to adequately vet visa applicants.  

Further, the argument is rather specious from the start.  If, for example, the United States was to adopt a policy of allowing persecuted religious minorities into the country, would we turn our back on Muslim minorities who may be persecuted in a Christian-majority country?  The fact this does not happen in no way negates the hypothetical. The fact is that when ISIS controlled large swaths of Iraq and Syria, they engaged in a campaign of genocide against Christians and other religious minorities, some of them Muslim sects.

One hopes that the Supreme Court rules in this case with a clear head and does not rely on the sob stories of a few.  This writer sees no problem with this travel ban which is not an open-ended action to start with, let alone an Establishment Clause violation.