In mid-June of a typical year, Supreme Court justices and their clerks are burning the midnight oil in the comforting knowledge that soon all involved will be happily winging off to vacation destinations, leaving controversy temporarily behind.
That happy prospect is complicated this year, however, by the June 1 arrival in the Court’s in-box of Trump v. International Refugee Assistance Program, the East Coast-based challenge to what President Trump himself adamantly insists on calling his “travel ban” on entry of persons from six majority-Muslim countries. The Court almost certainly will have to decide before leaving town whether to hear the case (hint: it will) and if so, when.
Justices contemplating this case may feel that they are staring into a labyrinth of potential missteps and institutional dangers. On Monday, their fellow judges from the Ninth Circuit Court of Appeals threw them a map of an escape route, if they care to take it.
The Ninth Circuit’s decision came in Hawaii v. Trump, a different challenge to the travel ban. In this version of the case, a Hawaii district court enjoined the order because, the judge said, it violates the Establishment and Equal Protection Clauses. Both cases potentially pose a set of novel and important questions. First, to what extent are a president’s national-security decisions limited by those two clauses of the Constitution? Second, when if ever should a reviewing court use a presidential candidate’s campaign statements, and a sitting president’s speeches and tweets, to interpret the “purpose” of an executive order?