Op-Ed: There’s a rationale for overturning Trump’s travel ban to fit every justice’s taste
President Trump’s travel ban heads to the Supreme Court on Wednesday as the justices hear arguments in Hawaii vs. Trump. Some court watchers have cast doubt on whether the justices will uphold rulings from lower courts on both coasts that have struck down Trump’s ban, now in its third incarnation. Skeptics point to the court’s decision in December allowing this version of the ban to go into effect while legal challenges continued and suggest that the court was signaling its intention to let the travel ban stand.
But reading Supreme Court tea leaves is tricky, and there are reasons to be optimistic that the court will agree with the 9th and 4th Circuit courts and decide against the administration. The nine justices who make up the court have different predilections, but this case is something of a judicial buffet: There’s a rationale for overturning the ban that fits everyone’s taste.
Some of the justices, following in the footsteps of the late Justice Antonin Scalia, emphasize a close and direct reading of the plain text of the law. Adhering to that approach is enough to resolve this case against the administration.
The Immigration and Nationality Act was changed in 1965 specifically to prohibit the government from barring immigration to the U.S. solely on the basis of nationality. Yet that’s precisely what Trump’s travel ban does. His presidential proclamation prevents entry to the United States on a country-by-country basis, targeting travelers and immigrants from Iran, Libya, Somalia, Syria, Yemen and North Korea (plus a handful of Venezuelan government officials).
When the White House holds up the travel ban as the implementation of an anti-Muslim position, it smacks of precisely what the 1st Amendment forbids.
The president claims emergency authority as a justification for his order. However, the Immigration and Nationality Act requires that emergency changes to immigration policy must be temporary, and Trump’s third travel ban is indefinite, not temporary. For justices who dig into the statutory text, there’s plenty to cause them to strike down the order.
Another angle may be of particular interest to the court’s newest member, Justice Neil Gorsuch: the question of how much of Congress’ constitutional authority it can give away to the president. Under a longstanding constitutional principle, each branch of government must, in essence, stay in its constitutionally allocated lane; it can’t escape or hand off the powers it has been given by the framers. The legislature, for example, can’t punt to the president or the judiciary on its obligation to levy taxes and appropriate funds. This is known as the nondelegation doctrine: Each branch must fully own the responsibilities that the Constitution gives it.
Article I of the Constitution assigns the authority over immigration to Congress, not the president: “The Congress shall have Power … To establish an uniform Rule of Naturalization.” And yet, the Trump administration argues that the Immigration and Nationality Act permits him to dramatically and drastically redesign, with the stroke of his pen, America’s approach to immigration. The nondelegation doctrine should render the administration’s position untenable.
Finally, we know some of the justices are deeply interested in sustaining the 1st Amendment’s establishment clause, which prevents the government from favoring — or disfavoring — a particular religion. That yields yet another perspective for ruling against Trump.
The travel ban arguably represents Trump’s fulfillment of a campaign promise to institute “a total and complete shutdown of Muslims entering the United States.” Five of the countries the ban applies to are overwhelmingly Muslim-majority nations. And since the inauguration, the White House has more than once publicly linked the ban to the basest forms of Islamophobia.
For example, after Trump retweeted three virulently anti-Muslim videos posted to Twitter by a far-right British politician, the president’s deputy press secretary, Raj Shah, was asked to explain the president’s views. He squarely put the posts in the context of the ban: “The president has addressed these issues with the travel order that he issued earlier this year, and the companion proclamation.”
When the White House holds up the travel ban as the implementation of an anti-Muslim position, it smacks of precisely what the 1st Amendment forbids. For some justices, this alone should be sufficient basis for striking down the third travel ban.
Some cases reach the Supreme Court with limited choices for the justices as they consider the arguments on both sides. This case is different. At this judicial buffet, the justices can load up their plates based on multiple issues. There are any number of ways to defeat the ban because there are any number of legal defects with what Trump has done. The question should be not whether to rule against him, but how.
Joshua A. Geltzer is executive director and visiting professor of law at Georgetown University’s Institute for Constitutional Advocacy and Protection, and a fellow at New America.
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