Since President Obama put her on the Supreme Court, Justice Elena Kagan has emerged as one of the leading questioners on the bench, dispensing with nonsense and equivocations with hypotheticals that cut right to the core. And on Wednesday, as she and her colleagues relished the opportunity to weigh the legality of Donald Trump’s third, and hopefully final, version of a travel ban targeting predominantly Muslim countries, she again illuminated the central issue in the long-simmering case: Is this president just like any other before him, with broad discretion to set immigration policy, no matter the incompetence and malevolence driving his actions?
In any other presidency, the presumption of regularity — or the principle that courts shouldn’t second-guess the wisdom of a president’s carefully considered policy choices — would spell the end of any attempt to put a stop to an executive order anchored in firm statutory authority. But Trump is different. And to this day, the nation’s highest court has yet to say much of anything about what his abnormal presidency means vis-à-vis other administrations that are more or less average and stick to regular order. We’ve never had a candidate win the White House on an unconstitutional pledge to shut out every Muslim on the planet, on the basis of their faith alone, from entering the country. What’s a court to do when the promise becomes policy?
To get to the bottom of that question, Kagan prompted Noel Francisco, the Trump administration’s solicitor general and top advocate before the Supreme Court, to imagine “a future time” in our nation’s history, when a passionate electorate, oblivious to the lessons of today, nonetheless will have chosen to send to the White House “a vehement anti-Semite,” bent on fulfilling his campaign promise that “no one should enter from Israel.” Call it a Jewish ban, if you will. And to make sure it passes judicial scrutiny, Kagan added, this future president’s administration will “dot all the Is and cross all the Ts” and abide by the established interagency protocols immigration law demands. What then? Would such a ban survive the Constitution’s bar on religious discrimination?
There’s no need to go to the future to answer Kagan’s hypothetical. Like it or not, the signature policy initiative that will define Trump’s chaotic presidency will be his hastily conceived, campaign-promised executive order barring entry into the U.S. of native travelers from predominantly Muslim countries. From the get-go, even after much trial and error, this so-called travel ban was a constitutional farce. In the year-plus period that its legality has been the focus of litigation — every iteration of it has been blocked or ruled unlawful by courts far and wide — the Supreme Court has come ever so close to rendering a definite judgment on it. But something — more litigation, a new version of the ban, other contingencies — kept the justices from dealing with it head on.
Today, the executive order isn’t even called that. Instead, it’s a proclamation — a mere shadow of the original restrictions that, when issued only a week after Trump took office, stranded families, brought chaos to airports, and prompted lawyers and courts to rise to the occasion and bring a modicum of order and process where there was none. Rudy Giuliani, now a member of the president’s legal defense team, infamously gave away Trump’s game on Fox News mere days after the first travel ban took effect, leaving little doubt about what the executive order was really about. “When he first announced it, he said ‘Muslim ban,’” Giuliani told the network. “He called me up and said, ‘Put a commission together, show me the right way to do it legally.’”
Doing so has been elusive for the president. And one of the chief concerns for the Supreme Court in Trump v. Hawaii, as the travel-ban controversy is now known, is whether such a wholesale restriction on travel can ever be legal under this president. Hence Kagan’s hypothetical, which Francisco acknowledged was a “tough” one. Disinclined to give an inch, he responded that even such an invidiously anti-Semitic travel order would be allowed if the president of the future, on the wise counsel of his advisers, pushed a valid national security justification for it. “The president would be allowed to follow that advice, even if in his private heart of hearts he also harbored animus,” Francisco said.
Justice Anthony Kennedy went ahead and called Kagan’s hypo “extreme.” But he too seemed concerned about the First Amendment implications of a candidate relying on religious prejudice for later shaping national security policy. “Suppose you have a local mayor and, as a candidate, he makes vituperative, hateful statements. He’s elected, and on day two, he takes acts that are consistent with those hateful statements. Whatever he said in the campaign is irrelevant?” Kennedy asked.
Repeatedly through the travel-ban litigation, the Justice Department has pushed the notion that Trump became a new man the moment he took the oath of office — that none of the hateful things he said or tweeted in the lead-up to the election can be imputed to him because he became a different person the moment Chief Justice John Roberts solemnly swore him in to lead the free world. Francisco continued that trend: “We do think that oath marks a fundamental transformation,” he said (with a straight face), adding that anything before that was just a “private citizen” exercising his free-speech rights. Seizing on this point, Roberts pondered, lightheartedly, whether there’s a “statute of limitations” for how long campaign statements are fair game to use against a president in constitutional litigation. Would the taint last for the entirety of his administration?
That’s a valid line of inquiry Trump’s defenders like to raise. Can he ever issue a valid travel ban affecting specific countries without being branded a bigot? Or what about a different kind of presidential order targeting Muslim countries? “What if the military advisers tell the president that, in their judgment, the president ought to order … an air strike against Syria, and the president says, ‘Well, does that mean [I] can’t because you would regard that as discrimination against a majority-Muslim country’?” Roberts asked, seemingly wary that an anti-Trump carveout could undermine future presidents. The presumption of regularity in action.
There’s little argument that Congress has given presidents nearly unfettered authority over how to manage America’s byzantine immigration system — especially the decision of whom to allow in or keep out. It’s the reason Trump and the Departments of Justice and Homeland Security have been able to get away with a long list of policies and practices that aren’t just effective at making life hard for immigrants, but also indisputably lawful under statutes already on the books.
In short, Trump has already managed a lot with the laws he already has at this disposal. But there have been exceptions when courts have had process objections to some of these otherwise cruel and inhumane decisions — and others may well violate higher principles of constitutional law.
Among those higher principles is the Constitution’s blanket prohibition on favoring or disfavoring one religion over another. “We cannot be anything but neutral with respect to religion or its practice,” Justice Sonia Sotomayor reminded Francisco, echoing her own sentiments in a fiery dissent she issued last summer in a key church-and-state case. The Hawaii plaintiffs, she continued, “are saying that that negative religious attitude is stopping them from doing things that they would otherwise be able to do: To associate with scholars from these countries, to bring in students, to have family members join them.”
If the Supreme Court is feeling coy about a sweeping First Amendment judgment against Trump, it can always fall back on immigration law itself. Hawaii’s main contention, as presented by Neal Katyal, himself a former acting solicitor general, is that Congress — in the same laws where the president enjoys broad authority — placed legal constraints that limit his ability to discriminate on the basis of nationality. And that Trump did exactly that when he haphazardly selected a number of Muslim-majority countries from out of a hat to then target for exclusion. “Congress rejected exactly what they’re trying to propose here, which is a flat nationality ban” on who gets a visa, Katyal said. He added later in the oral argument that if the Supreme Court were to accept the legality of Trump’s proclamation at face value, it would be “giving the president a power no president in 100 years has exercised — an executive proclamation that countermands Congress’s policy judgments.”
Maybe. But if history serves as a guide, the Supreme Court has found ways in the past to give the president a pass whenever he claims national security is at stake. As legal twists would have it, it fell to Katyal during the Obama administration to confess error on behalf of the Justice Department for its defense of shameful policies that resulted in the detention and internment of tens of thousands of Japanese-Americans during World War II. The circumstances surrounding the Korematsu case, in which the Supreme Court largely upheld those policies, didn’t come up during Wednesday’s hearing — a missed chance to revisit the specter of a case that looms large over the travel ban’s existence.
What’s more, there was hardly an urgency to the justices’ attitude toward Trump’s excesses, which may mean that, in the end, history is bound to repeat itself. And Trump, rather than be treated like the aberration that he is, will be treated, at least in this one case, like all the presidents who came before him.