Key issue on immigration: Is the “ban” really a ban?

In a period of about 20 weeks, a total of 430 travelers have been allowed to enter the U.S. from the Muslim nations on the terrorist risk list that the Trump Administration and his aides created under his strict immigration policy.  And one nation was recently dropped off of that list.  The Supreme Court explored on Wednesday whether those two facts are enough to prove that President Trump has not imposed a flat ban on Muslims coming to America.

That could be the crucial question for the Justices, but only if a majority is satisfied that the Court has the power to rule on the legality of the President’s order that supposedly applies to about 150 million Muslims in the five countries that remain on the list.  That is a fundamental question about the constitutional separation of powers, and it, too, was very much on the minds of some of the Justices at Wednesday’s hearing.

The Trump executive order at issue has been in full effect, with the Supreme Court’s temporary permission, since December 4 and, in that time, 430 individuals have received waivers and got visas to enter.

The order is the third and latest version of the president’s attempts to craft an immigration control regime that he believes necessary to keep potential terrorists out of this country.  However, this is the only one of the three orders to be come up for full review by the Supreme Court, and the Justices energetically debated what Congress may – or may not – have done to give the President the authority he is claiming.

The Court got two totally conflicting arguments on that point.

The government’s top lawyer for Supreme Court cases, Solicitor General Noel J. Francisco, contended that Congress has explicitly handed the President sweeping authority to exclude any alien or any class of aliens if he deems that necessary to serve a national interest.  That authority, he said, is so broad that the Supreme Court simply cannot second-guess it.

Francisco also argued that a second law at issue, forbidding discrimination against potential immigrants based on the country where they live, is so narrow in scope that it should not even apply in this instance.

But the Washington, D.C., lawyer for Hawaii and the other challengers to the Trump order, Neal K. Katyal, asserted that the President has directly contracted what Congress had decreed and is attempting to seize unilateral power to take “a wrecking ball” to any immigration law at will.

Further, Katyal insisted that the law against discrimination based on one’s home country clearly and explicitly makes the Trump order illegal.

Each of the two lawyers was questioned closely on those two points, with the Court’s more liberal Justices testing Francisco and its more conservative members pressing Katyal.

Francisco also got some notable support from conservative Justices who indicated they were most hesitant about second-guessing the President on an issue of national security, while Katyal got some significant support from liberal Justices who suggested that Congress was the primary actor on immigration and had already taken the action needed to regulate access to entry visas.

The actual meaning of the two key immigration laws has always seemed a far less visible public issue surrounding the Trump order than the question of whether the order imposed a “Muslim ban”—that is, banning entry to people from Muslim-majority nations and thus discriminating against them based on their religious faith.  While the religion question did come up Wednesday, it drew notably less discussion than the immigration law dispute.

One reason for the lesser emphasis may be that at least some of the Justices are not prepared to make a part of their review the many statements that Trump has made as a candidate and since taking office suggesting that he did, indeed, want a ban on Muslims.

Chief Justice John G. Roberts, Jr., for example, questioned Katyal whether there was any time limit on how long the President might be limited in his immigration authority because of any such previous statements.  The challengers’ lawyer replied that, if the President were to publicly renounce those statements, on that day the statements would cease to count as proof of bias.

Near the end of the hearing, Solicitor General Francisco said that President Trump already did so, last September.

There was a lively exchange between Justice Elena Kagan and Francisco on whether a future president who was deeply anti-Semitic could constitutionally tell his aides to set up a regime for keeping out all travelers from Israel.   Francisco seemed somewhat uncomfortable with the hypothetical but, in essence, said it might depend on whether the president had national security reasons for singling out a specific country.

The religion issue arises only as a constitutional question in the case, and the public statements or tweets, challengers’ lawyer Katyal said, apply only to that issue, and not to the dispute over what immigration laws do or do not allow.  If the Court were to rule for Katyal’s side on the immigration law issue, it would not have to reach the religion question.  But it if were to rule for the Trump Administration under the immigration laws, it probably would then have to deal with the religious objection.

Justice Anthony M. Kennedy, who could wind up casting the deciding vote if the other Justices are evenly divided, showed some interest in the religion issue, but did not reveal his leanings.

Because the Trump order has now had an actual testing period, since it went into effect early in December, the question of how it is working became an issue that interested a number of Justices after it was first brought up by Justice Stephen G. Breyer.

Breyer said the Trump order did spell out some exceptions to the ban on entry, and he wondered whether, in fact, some travelers from the listed countries were qualifying to enter.  He also wondered if the waiver provision was mere “window-dressing.”

Francisco said that 430 waivers of the ban showed that it did have flexibility, and he added that the removal of the Muslim nation of Chad from the President’s list showed that it could be relaxed and that the order was having the desired effect of putting pressure on the listed countries to improve their procedures for “vetting” travelers seeking to enter the U.S.

Katyal belittled the number of waivers, and said that the state of Hawaii has gotten 1,000 letters from people who do not even know that there is a visa-waiver eligibility for their relatives in the five countries on the list.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.