It is a beguiling narrative, though not a soul in the courtroom or the wide world beyond it believed it. In reality, where lawyer’s fictions garner little respect, there was no secret that the idea of “entry restrictions” came from the president and that they were understood both by him and by his supporters to embody his best attempt at a promised “total and complete shutdown of Muslims entering the United States.”
On Tuesday, however, the Court’s majority accepted the official version almost in toto. Though Roberts’s opinion reviewed the earlier, botched executive orders that tried to close the country’s doors to entrants from a number of Muslim countries, it recited their promulgation, lower-court rejection, and withdrawal in solely bureaucratic terms. Only 25 pages later did it mention “a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation.” Before any serious reckoning with the outright bigotry of Trump’s campaign and his statements as president, the majority conducted a dense discussion of the president’s authority under the Immigration and Nationality Act.
That statutory argument was always a heavy lift for the challengers, because, as Roberts phrased it Tuesday, the statutory scheme “exudes deference to the President in every clause.” Chiefly at issue is a provision of the act, § 1182(f), that permits the president to “suspend entry of all aliens or any class of aliens” or impose restrictions on those he chooses. The challengers had argued that this language had to be read against the entire act, which reposes principal responsibility for creating “classes” of foreign entrants with Congress, with delegation to the president limited to emergency responses to foreign events.
But that restriction is not in the text, and Roberts was at pains to read the statute in the most pro-executive way possible—and, indeed, to go beyond the text to imagine a context of all but total deference to the executive, citing both “the broad statutory text and the deference traditionally accorded the President in this sphere.” The challengers had argued that previous presidential orders had been more closely tailored than the current version of Trump’s ban, suggesting that the statute was limited in scope; a few pages later, Roberts rejected that argument, citing the president’s “sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.”
By this point, a reader had gotten the idea.
Roberts only took notice of Trump’s statements in the second part of the opinion. The plaintiffs claimed that, by expressing and embodying hatred and disapproval of Islam, the order violated the prohibition on “an establishment of religion.” Roberts rejected this claim as well.
He began this section by noting many pious presidential proclamations in favor of religious freedom. Of course, those statements were made by other presidents, beginning with George Washington and moving forward to George W. Bush in the aftermath of 9/11. As for Trump’s own words, Roberts wrote, “the issue before us is not whether to denounce the statements.” Instead, “we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”