“What if the military advisers tell the president that, in their judgment, the president ought to order a strike, an air strike against Syria,” Chief Justice John Roberts asked Neal Katyal from the bench on Wednesday, “does that mean he can’t because you would regard that as discrimination against a majority-Muslim country?”
Katyal, a former acting solicitor general and one of the most formidable appellate lawyers in America, was, as ever, unflappable. “I don’t think there’s any immigration issue in your hypothetical. I might be misunderstanding it, Mr. Chief Justice,” he said.
In a normal world, Roberts’s question would be bizarre. Immigration law and the war power are distinct. But in the strange twilight world of 21st-century America, it made a certain twisted sense. Nearly 17 years after Congress responded to the 9/11 attacks with an Authorization for Use of Military Force, the United States continues to march through an ill-defined conflict with an undefined enemy in pursuit of unstated aims. In today’s America, War is Peace.
Everyone in the country is weary of the struggle, perhaps especially the justices of the Supreme Court. Sixteen months and three proclamations after Donald Trump was elected on a promise of a “total and complete shutdown on Muslims entering the United States,” the arguments about his “travel ban” have been heard over and over. Is the current “proclamation” a sweeping “Muslim ban” or a restriction on immigration from a small set of majority-Muslim countries? Can the president’s bigoted campaign promises be considered in assessing the intent behind the proclamation? Do the courts have any role to play in examining decisions on matters of national security or immigration? Do persons or institutions in the U.S. have the right to challenge the exclusion of persons or groups outside? Does the third iteration of the proclamation send a message that a “reasonable observer” would regard as disparaging Islam?