Tuesday morning, the Supreme Court heard the Travel Ban case. Arguing over Trump’s Tweets, the executive orders, and whether this was a Muslim ban at all, the advocates faced an engaged panel where the President’s intent played a big part of the discussion. Was President Trump acting legally when he issued executive orders severely limiting travel to the United States from several countries that are predominately Muslim?
Arguing for the administration, Solicitor General of the United States Noel Francisco drew a clear line in the sand that any statement made by a candidate should be off limits in evaluating intent to determine constitutionality:
[W]e are very much of the view that campaign statements are made by a private citizen before he takes the oath of office and before, under the Opinions Clause of the Constitution, receives the advice of his cabinet, and that those are constitutionally significant acts that mark the fundamental transformation from being a private citizen to the embodiment of the executive branch. So that those statements should be out of bounds.
Neal Katyal, a Clinton and Obama appointee, who was acting Solicitor General in Obama’s Department of Justice, represented those seeking to overturn the executive orders. He did not try to have the Court include pre-election statements in their analysis. Katyal did, however, argue that the Court must consider Trump’s Tweets after he was elected in determining the executive orders’ legality:
And third, and most importantly, the President before this review process even began tweeted and said that he wanted a tougher ban, a non-politically-correct ban and the like.
Justice Alito pressed Kaytal on the idea that this was a Muslim ban at all. After identifying how only 8% of Muslims worldwide were covered under the new rules, he asked, “[s]o would a reasonable observer think this was a Muslim ban? Kaytal again argued Trump’s offhand statements were controlling:
If it were — if it were just the text of the order alone, it might raise eyebrows, for fit and other reasons that the briefs go into, but we wouldn’t be here. We absolutely agree that just — it’s the same test as in Lukumi and other cases. You have to look to all the circumstances around it that are said, the publicly available ones.
Justices Stephen Breyer and Ruth Bader Ginsburg were both concerned with the exception to the ban, the waiver process, and if it were genuine. Presidents Carter and Reagan both issued something akin to this travel ban, but the waiver process they instituted was perceived as functional, while Trump’s is not. Why are so many who seem eligible for the waiver denied action?
The story of a ten-year-old Yemeni girl with cerebral palsy was illustrated as a person who was denied for no discernable security purpose, and yet has not been granted a waiver. General Francisco countered that a main purpose of the order is to exert political pressure on the affected countries, spurring them to adopt security procedures we prefer, and “that the individual vetting process depends upon us having the minimum baseline of information needed to determine in that vetting process whether the person is admissible.”
On January 27, 2017, the newly inaugurated president signed Executive Order 13769, titled Protecting the Nation from Foreign Terrorist Entry into the United States. The order lowered the number of refugees to be admitted into the U.S., suspended the entry of Syrian refugees indefinitely, and suspended entry to the U.S. from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. More than 700 travelers were detained, and up to 60,000 visas were “provisionally revoked.”
That set off a maelstrom of lawsuits and replacement orders which were quickly struck down by Obama appointees in Federal District Courts in Maryland and Hawaii. Many of those opposed to the way these orders were ruled on early in their jurisprudential history thought it was inappropriate for lower level Obama appointees to overturn, globally, these Executive Orders. Justice Gorsuch addressed the issue of federal district courts exerting such authority, stating:
We have this troubling rise of this nationwide injunction, cosmic injunction, not limited to relief for the parties at issue or even a class action. And, near as I can tell, that’s a really new development where a district court asserts the right to strike down a — a federal statute with regard to anybody anywhere in the world.
Absent some extraordinary event; the Court will issue its ruling on this case before it’s July recess.
