Finding Rays Of Hope From The Supreme Court's Depressing Travel Ban Arguments

Travel ban oral arguments did not go well for people of decency, but I still have hope.

(Photo by Jack Taylor/Getty Images)

I get why everybody is interpreting today’s oral arguments as a clear indication that the Supreme Court will uphold the Travel Ban. Listening to the audio was… depressing. I can’t quite convey how disgusting it is to listen to a bunch of conservative white guys casually disregard open bigotry as irrelevant, immaterial, or truly not even worth talking about.

At one point Samuel Alito said “So would a reasonable observer think this was a Muslim ban?” in this snide, flippant way to suggest that millions and millions of people standing up to the bigotry of this president and his ban are being hysterical. I wished, briefly, that he had been just another officious white man at a bar, so I could have shown him what true hysteria sounds like.

All signs point to a 5-4 decision in favor of the travel ban. All signs point to a country that must descend yet further into the bigotry and hate of our basest instincts before the wheel can ever come back around.

But… I have not lost all hope. I am not sure that the Supreme Court, Chief Justice John Roberts and Anthony Kennedy really, is fully on board with this grotesque executive order.

The legal battle lines on the travel ban are pretty clear. Challengers say that the ban violates the establishment clause, violates the Immigration and Nationality Act, violates the separation of powers, and is a violation of good sense and common decency. The government says: yes but national security, HooHa, I win.

Given those lines, every question about national security, and the president’s broad authority to act in the interest of national security, seems like a “win” for the government. The conservative justices asked nearly no questions about the establishment clause or the INA to Solicitor General Noel Francisco when he was arguing the government’s position. But they peppered Neal Katyal with presidential power questions and hypotheticals when he rose to argue for the challengers. Hence the prevailing narrative that the government’s side is likely to win.

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But here’s the thing, I thought, biased though I am, that Katyal did a great job answering those questions and hypotheticals. Of course Roberts and Kennedy were going to have a lot of questions about the executive’s authority to act in the national interest. They both believe, strongly, that the courts should not be in the business of “reviewing” the President’s opinion about our national security interests, and Katyal was always going to have to explain how the challengers to the travel ban are not asking them to do just that.

And, you know, Katyal explained. For instance, Roberts asked:

Let’s suppose that the intelligence agencies go to the President and say, we have 100 percent solid information that on a particular day 20 nationals from Syria are going to enter the United States with chemical and biological weapons. They could kill tens of thousands of Americans. In that situation, could the President ban the entry of Syrian nationals on that one day?

Katyal explained that the president would of course have authority to do that. He “conceded” the hypothetical, and then distinguished that hypothetical from the instant case.

In a point he returned to, again and again, Katyal said that Congress has already said exactly what we should do in a situation like, as the government claims, some countries are not willing to give us sufficient information for vetting.

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He’s not talking about people coming in or something like that, like your hypothetical. And with respect to that, Congress has said here’s how we deal with it. We deal with it with the individualized vetting system, which pushes all the burdens on a person coming in. That’s 1361.

You’ve got to show biometric ID under the statute. You’ve got to have an in-person interview, if there’s any risk that the person is from a country that’s a state sponsor of terrorism, like your hypothetical or anything else.

So Congress has really said in a robust way, here is how we would deal with it. And to the extent countries aren’t cooperating, we offer carrots.

Congress rejected exactly what they’re trying to propose here, which is a flat nationality ban.

That is a really good answer.

Katyal argued that one of the defects with the ban is that it is perpetual. Kennedy countered that it was eligible to be reviewed after 180 days. Katyal had something for that:

Justice Kennedy, this argument wouldn’t be there if there was anything about reassessment, the way there are in about half the orders, including the Cuba order, which says it sunsets once the crisis ends. There’s nothing like that in this.

And it’s just like a reporting requirement to Congress in which Congress isn’t necessarily required to do anything. Congress has statutes like that all the time.

This is that. And that’s why this is unlike any other executive order. If you go back and look at all 43 executive orders that Presidents have issued, none of them have even arguably countermanded Congress’s judgment in the area.

That made Kennedy change his argument from there is an likelihood of reassessment, to arguing that nothing requires the president to put a timeline on his national security initiatives. Which is true, but concedes Katyal’s point that no other immigration executive order has done it that way.

Again, the fact that Roberts and Kennedy are fighting Katyal on the scope of presidential authority is BAD NEWS for the challengers to the travel ban. The fact that Roberts and Kennedy are willing to ignore the bigotry concerns in deference to national security concerns is exactly the kind of flawed, embarrassing cowardice that led the Court to uphold the executive order interning Japanese-Americans during World War II in the Korematsu decision. The Court seems to be doing it again.

But… maybe Roberts and Kennedy are trying to figure out how to defer to national security concerns, without authorizing the kind of bigotry embodied in the travel ban, and Katyal was giving them a hook to hang their hats on.

A lot of times, you listen to oral arguments and you hear justices that are dismissive of arguments they don’t like. Go back and listen to Roberts in Gill v. Whitford, to get a sense of what I’m talking about. There, Roberts reacted like math was some kind of black magic and challengers were asking the Court to engage in witchcraft.

Roberts and Kennedy didn’t sound that way today, at least not to me. Alito sounded that way. Neil Gorsuch… I don’t think he’s capable of sounding anything other that dismissive and condescending. But Roberts and Kennedy sounded like men honestly trying to work it out. They obviously have these deep national security concerns, but that doesn’t mean they are blind to the even more fundamental issues at play.

I mean, I’m probably just being hopelessly naive at this point. I’m basically hoping that Roberts and Kennedy will change their mind. Every rational indication is that the Supreme Court is going to deliver Korematsu 2.0 to their shame, sometime in June.

But I still have some hope that we aren’t this evil, in the end.

Transcript of Trump v. Hawaii


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.