“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?
Can we please, please stop now?
The two advocates put forward their cases as well as they can be made; how you assess them will depend on whether you see the case in terms of equality and religious liberty or—as Roberts’s question suggests—as a matter of danger, world conflict, and defense.
Solicitor General Noel Francisco led off on Wednesday. Donald Trump’s campaign statements don’t count: “We 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.” The oath, and the Cabinet, wash away the original sin.
And anyway, the third iteration of the proclamation isn’t really Donald Trump’s at all. It was instead the work of Trump’s Cabinet officers—and in fact, not even of the political appointees, but of the agencies themselves, which had researched the process used by various countries to decide which of them provided the U.S. enough information about their nationals seeking entry into the U.S. “It is an order that is based on a multi-agency, worldwide review that applied neutral criteria all across the world.”
The heart of Francisco’s argument was what the government calls the “presumption of regularity” of government action: “There is a very strong presumption that what is being set out there [in the proclamations] is the truth.”
Justice Elena Kagan asked Francisco to imagine a “hypothetical” situation in which an anti-Semite is elected to the White House and orders the Cabinet to exclude Jews. Officials come back with a proposed ban on immigrants from Israel. Francisco replied by subtly changing the facts: “If his Cabinet were to actually come to him and say, ‘Mr. President, there is honestly a national-security risk here and you have to act,’ I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”
Justice Anthony Kennedy asked Francisco, “Suppose you have a local mayor and, as a candidate, he makes vituperative hate—hateful statements, he’s elected, and on day two, he takes acts that are consistent with those hateful statements. … You would say whatever he said in the campaign is irrelevant?”
Yes, Francisco said, “that oath marks a fundamental transformation.”
Katyal replied to the “regularity” claim by noting that the Cabinet had its marching orders before its work began: “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.” Trump as president retweeted two virulently anti-Muslim videos, and his press secretary responded to questions about them by saying, “The president has spoken about exactly this in the proclamation.” Roberts asked whether Katyal’s answer would be different if Trump had repudiated his previous anti-Muslim statements. “Absolutely,” he answered. “And, Mr. Chief Justice, that’s exactly what I told the Ninth Circuit in May. The president didn’t do that.”
That answer hangs over the case. If all that is needed is presidential repudiation, why wouldn’t Trump do that? (Francisco responded that Trump has done that, without saying so: “The President has made crystal clear … that he had no intention of imposing the Muslim ban.”)
Katyal’s argument had three parts. First, he said, the Immigration and Nationality Act doesn’t permit the president to make permanent, or indefinite, changes to the highly complex statutory scheme Congress has passed. Second, the INA explicitly forbids discrimination by nationality, at least in issuing immigrant (as opposed to temporary) visas.
The third argument, though, is the one that absorbs the country: Does this order violate the Establishment Clause? Does it tag Islam and Muslims generally as dangerous, undesirable, un-American? In legal terms, this is measured by something called the “reasonable observer” test. A “reasonable observer” who saw a huge cross atop the county courthouse would conclude that Christians in that county held governmental power. What would a reasonable observer conclude about the “travel ban”?
Justice Samuel Alito pointed out that of the top 10 Muslim-population countries in the world, the proclamation covers only one. Francisco said that, “This is not a so-called Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.” Katyal answered that the countries included are between 90 and 99 percent Muslim. “[T]he fact that the order only encompasses some Muslim countries I don’t think means it’s not religious discrimination. For example, if I’m an employer and I have 10 African Americans working for me and I only fire two of them, and say, well, I’ve left the other eight in, I don’t think anyone can say that’s not discrimination.”
At the end of the hour, the “regularity” argument, coupled with the “neutral” language of the third proclamation and the national-security implications, seemed likely to carry the day. As Roberts’s question suggested, he was openly skeptical of the challenge; Kennedy, too, seemed to think the Court had no place in the president’s national-security calculations. He asked Katyal, “Your argument is that courts have the duty to review whether or not there is such a national contingency; that’s for the courts to do, not the president?”
The national-security argument is hard; but as for the Establishment Clause question, were the justices asking the right questions? So what if this version of the proclamation uses neutral language? So what if it is ineffective as a “Muslim ban”?
Should this save the proclamation if “unreasonable observers”—let’s say, purely hypothetically, the kinds of Americans who might decide to vote for a presidential candidate who said “Islam hates us” and promised a “total and complete shutdown” of Muslim immigration—would think that the proclamation really is an effective, intentional attack on Islam? Why should “ineffectiveness” matter if the president who issued it kept winking at the camera and slyly hinting he has done what he said he would do?
If the proclamation’s anti-Muslim message is visible only to the ignorant and bigoted, does that really somehow make it okay?