Remember The Travel Ban? The Supreme Court Is 10 Days Out From Arguing Over What Kind Of Country We Are.

We talked to Josh Geltzer about a case that people have seemed to have forgotten about.

(Photo by Jack Taylor/Getty Images)

Oral arguments in Trump v. Hawaii are scheduled for next week. That’s the “Travel Ban” or “Muslim Ban” case. Almost 75 years after Korematsu v. U.S. was decided, the Supreme Court will once again decide if it’s okay for the president to authorize bigotry via executive order, so long as enough people are afraid.

I fear their answer. There are 5 white males on the Supreme Court, and any or all of them are susceptible to the argument non-whites can be singled out for special torment, plus Clarence Thomas thinks that state-sponsored bigotry is just a neat way of separating the men from the boys.

But, my pessimism is not shared by lawyers working against the travel ban. Above the Law was able to sit down with Josh Geltzer, who has worked on some of the amicus briefs in the case. Geltzer is a visiting professor at Georgetown University Law Center, and former National Security Counsel adviser, and is surprisingly optimistic about the chances of a Supreme Court victory for Hawaii next week. Though he wouldn’t make a prediction on a final disposition, Geltzer refused to concede any justice to the government’s case: “What I find encouraging is that there are so many ways into this case. There are so many defects with what the government has done here.”

It’s true! There really are numerous lines of attack against the travel ban. One can imagine a world in which the travel ban is rejected, 9-0, based on some combination of these three faults:

  • Congress, not the president, has the authority to do this under the Immigration and Nationality Act. The argument that President Trump overstepped his Constitutional authority has been most cogently made by the Ninth Circuit. It’s most recent rejection of the travel ban was an eloquent takedown of the ban on statutory interpretation grounds. Surely some conservative justices could get behind the 9th’s argument here.
  • This isn’t really about national security. National security experts, like Josh Geltzer, say that this ban isn’t how one would go about keeping us safe.
  • It’s the Establishment Clause, stupid. We can make increasingly technical arguments about statutory interpretation, but let’s not forget that Trump promised to “ban Muslims” and this ban is a direct result of that campaign promise. There’s no reason for justices to look away from the clear intent of the president to enact a religious test for entry into the country.

A huge question is whether the Supreme Court will consider Trump’s tweets. Geltzer reminded us that after Travel Ban 3.0 went out, Trump retweeted virulently anti-Muslim tweets: “No judge or justice wants to put their heads in the sand. They try to be cognizant of context.”

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In a perfect world, I’d like to think that all nine justices could see their way clear to reject bigotry as a constitutional proposition. But I’d also like to have a billion dollars and acquire the power of flight. We asked Geltzer about the government’s strongest argument in favor of the travel ban:

They want to put a national security frame on this whole thing. And then all sorts of things flow from it. Deference, on the factual side. Potentially deference on the legal issues… The government trying to elicit deference on a set of issues that I don’t think they are entitled to.

Geltzer is among 52 national security professionals who have objected to the government’s argument. “No national from any of the eight countries affected has committed a terrorist act in the united states since 1975. [The travel ban] just isn’t responsive to real threats.”

But Japanese-American citizens living in the West posed no real threat to American security interests during World War II, and yet they were caged anyway. Korematsu is still good law. While I doubt any of the pro-ban justices will have the guts to cite it as precedent, the motivations behind Korematsu still find intellectual relevance among some members of the Court.

Geltzer wasn’t interesting reading the tea leaves. “The fact is that this was a religiously informed act on the part of the president.”

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I think it’s either going to be 5-4 to uphold the ban, or 6-3 to reject it. I think Roberts and Kennedy move as a block: either they’ll cow to the president’s version of national security, and Roberts will author the next Korematsu decision, or they’ll choose from the number of constitutional defects to reject the ban. OR… they’ll team up to use the “bona fide contacts” dodge: applying the ban to people with no contacts to the country, but defining for themselves what constitutes “family” and then say that the ban is unconstitutional with regards to people with minimum contacts to people who currently live in the United States. But whatever they’ll do, they’ll do it together.

Bigotry is the only campaign promise Donald Trump has kept. The Supreme Court will get to decide if that’s allowed to continue.


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.