Not since President Harry Truman 66 years ago was denied the power to seize control of an industry vital to waging war has the Supreme Court faced a constitutional test of the Chief Executive’s authority as crucial as the one it takes up on Wednesday. There are clear constitutional echoes of that historic 1952 confrontation as the Justices weigh President Trump’s hard-line policy on immigration.
Specifically at issue in the case of Trump v. Hawaii is a presidential order that permanently bans entry to the United States of foreign nationals living in five Muslim-majority nations, based on the argument that travelers from those nations may pose a terrorist threat to America’s national security. That is the third and latest version of a policy the President has been pursuing since his second week in office, and it reflects a goal that was a dominant issue in his campaign for the White House when he called openly for a “Muslim ban.”
An hour of oral argument on four questions, ranging from the procedural to the profound, is set to start at 10 a.m. Wednesday. It is the only case being heard that day, so Chief Justice John G. Roberts, Jr., is likely to allow it to run considerably beyond that hour, if the Justices wish to keep at it. This is the last hearing by the Justices in an already historic term; a decision is likely by the end of June.
The Justices’ options on what to do with the order range from dismissing the challenge to it without a ruling on the order’s legality – thus leaving it intact, to an embrace of a presidential power to exclude foreigners from American shores wider in scope than has ever been exercised before – or maybe the opposite: a sweeping new curb on when a president may put up barriers to entry of foreigners.
The final outcome may provide broad new interpretations of federal immigration laws, and it could lead to historic constitutional declarations about presidential authority and about religious rights – especially the rights of the world’s huge population of Muslims and their relatives inside the U.S. As originally drafted, the ban would apply to some 150 million foreigners, and would be permanent.
The Trump Administration goes into the hearing with a beginning advantage that may, or may not, survive the Justices’ review. The ban has been fully in operation for more than five months, after the Justices voted – with only two dissents noted – to lift a lower court order that had temporarily blocked it.
One of the factors the Justices consider in taking such a step is whether there is a quite good chance that the lower court’s action will be overturned after review. The December 4 order permitting enforcement, of course, was not a final one, and it did not get the full attention and the intense focus that the Justices will give after considering a tall stack of written legal briefs by a wide array of groups and organizations – on both sides—and what actually happens at Wednesday’s hearing.
One of the issues the Justices are likely to pursue on this point is what has been happening, factually, while the policy has been in effect. That could have an effect on whether the Justices are prepared to undo an existing policy, which takes somewhat more judicial exertion than ruling against a policy that had not yet gone into effect.
Also potentially working in the Administration’s favor are two other facets that might have some weight, but may not be decisive: the tradition of the Court in respecting the powers of one of the other branches of the national government, and the separate tradition of allowing Presidents and Congress a wider range of authority to deal with foreign policy and national defense.
Neither one of those traditions, however, helped President Truman when the Supreme Court in the famous “Steel Seizure Case” struck down his Administration’s order taking control of the U.S. steel industry to keep it from being shut down during the Korean War by a labor union strike.
That 1952 decision created one concept that has ever since influenced the Justices when they consider a constitutional challenge to presidential action. Under that concept, spelled out in a separate opinion speaking only for Justice Robert H. Jackson but now ranking as persuasive doctrine, presidential power is at its weakest (“at its lowest ebb”) when the Chief Executive acts entirely alone, using that office’s constitutional powers and in a challenge to what Congress wants; presidential power is stronger when the president and Congress each have a share of the power at issue, and, finally, the power of the president is “at its peak” when the president expressly is carrying out powers of the office as well as a specific grant of authority by Congress.
It is not surprising that, in the case of Trump v. Hawaii, the two opposing sides argue that this doctrine supports their side. The Administration claims that the President was using not only his own “inherent” power over foreign policy but also a specific immigration law passed by Congress allowing the president to “suspend” entry to the U.S. of an entire class of foreign nationals to protect U.S. interests. The state of Hawaii and the other challengers claim that Trump was acting in direct defiance of an immigration law that bars the exclusion of people based on the country in which they live, and also claim that the law permitting suspension of entry only applies to individuals who pose a risk, not to all of the people of a specified nation.
In this case, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of the challengers, concluding that President Trump did not have “inherent” power to issue the broad ban and that he did not follow Congress’s wishes in immigration laws.
Thus, the interpretation of those two immigration laws is central to the controversy as it now unfolds before the Justices. If the final decision on the scope of those laws were to go in Hawaii’s favor, the Justices presumably would strike down the Trump order, especially if they agreed with the Ninth Circuit Court that Trump lacked “inherent” power to put up a permanent ban to entry of entire nations’ populations.
If the Justices were to rule in favor of the President on the scope of those laws and on “inherent” presidential power, the Court still would have to weigh another constitutional issue before making a final ruling. That is the strenuously contested issue of whether Trump’s presidential order was intended to be and actually operates as a “Muslim ban” – that is, that the order was issued as a form of discrimination based on religious faith, in violation of the First Amendment’s ban on government favoritism or disfavor among religions.
The Ninth Circuit Court did not rule on that question, because its other rulings went against the White House order. But another appeals court, the U.S. Court of Appeals for the Fourth Circuit, ruling in a Maryland case, declared that the Trump order was an unconstitutional form of religious bias against Muslims.
While the Administration has also appealed the Fourth Circuit Court’s ruling, the Justices silently bypassed a request by the challengers in that case to hear it along with the Hawaii case. The challengers in Maryland have now put forth their views in a friend-of-court brief in the Hawaii case. That new brief discusses a point that they had wanted to make if the Justices had agreed to hear their case directly: that any decision protecting foreign nationals from the entry ban should not be limited to those who already have close ties to relatives or institutions in the U.S. That issue is not at stake in the Hawaii case, those challengers said, so the Justices should leave it to lower courts to decide in later cases.
Even though the Court is not reviewing directly the Fourth Circuit Court ruling on the religious discrimination issue, the Justices did add that as a question in the Hawaii case, at the urging of the lawyers for the challengers, when the Justices granted review in January.
One of the underlying issues in the religious discrimination controversy is whether the Justices will take into account what Trump said about a “Muslim ban” when he was still a candidate, in speeches and in Twitter messages. Some of his “tweets” on the issue since becoming President are also at issue.
Administration lawyers, however, are trying to persuade the Justices that presidential messages via Twitter should not be taken into account in judging the presidential order’s constitutionality, because they say that order is not involved at all with religion. Moreover, those lawyers contend that President Trump has respect for Muslim people, and argue that a court decision that labeled him anti-Muslim would impair his ability to deal with foreign nations where Muslim is a dominant faith.
Beyond the other major issues in the case, the Administration has another, sweeping argument that could simply end the case abruptly. Its lawyers contend that, since the president’s powers are so clear in this instance, there is no role for the courts to play in judging the use of those powers. The exclusion of foreign nationals is a power given only to the political branches – the President and Congress—so the courts may not second-guess those powers, according to this argument. If accepted by the Court, that would be the end of this and similar challenges to presidential actions of the kind at issue.
The Administration also argues that foreign nationals have no right to enter the U.S., and that their relatives or their contacts inside the U.S. have no right to sue to protect the opportunity for the foreigners to enter. The federal lawyers further argue that those who sued – Hawaii, a few Muslim individuals in this country, and a Muslim religious association – cannot sue to protect the religious rights of foreign nationals and have made no real argument that their own religious rights have been violated. The challengers resist all of those arguments.
If the Court were to side with the Administration on that fundamental dispute, the case would be dismissed, and the policy would remain as is as long as the Administration wished to follow it.
There is one other, narrower question that the Justices will be confronting, but it, too, has some wider implications. The Administration argues that, if the Justices do decide to rule against the Trump order, they should overturn the part of the lower court order that barred enforcement of that order across the U.S. and throughout the world. Any restriction on enforcement, the government lawyers assert, should be limited solely to protect those specific individuals and groups who had sued. That point lost in lower courts, and the challengers continuously and strenuously contest it, arguing that the Trump order is global in nature so the remedy in striking it down should also reach everywhere.
The wider impact of a ruling limiting the bar to enforcement would come amid a background of increasing use of nationwide or global orders even when a single judge rules against the government in a single, specific case. The Trump Administration is attempting in general to challenge such broad restrictions.
The Trump order, as originally drawn up last September, imposed the ban on entry of all foreign nationals from six nations with Muslim-majority populations: Chad, Iraq, Libya, Somalia, Syria and Yemen. The order was based on the claim that the governments of those nations did not have adequate procedures for screening travelers, so exclusion was necessary to keep potential terrorists from traveling to the U.S. In April, however, the Administration changed its mind about Chad, and took that country off the ban list.
The Trump order also applied to North Korea and to several officials in Venezuela, but those exclusions were not challenged in either the Hawaii or Maryland cases, and thus the ban as it applies to them is not at issue before the Justices.
The Supreme Court has been dealing off and on with preliminary issues regarding the various versions of the Trump order, but the most important of those was the December 4 order that allowed full enforcement of the ban as it applied to Muslim-majority nations. That order led to public dissents from only two Justices: Ruth Bader Ginsburg and Sonia Sotomayor.
It is far from clear, however, that the Justices will divide in the same way when a final decision emerges.
On Wednesday, the hearing will open with the Administration’s defense of the Trump order by Noel J. Francisco, the U.S. Solicitor General. Arguing for the challengers is Neal K. Katyal, a Washington lawyer who previously held the Solicitor General’s job in an acting capacity. The time in the hearing will be evenly divided between them.
The Chief Justice has taken the rare step of allowing the audiotape, as well as the written transcript, to be publicly released as soon as possible after the hearing is over. The same-day release of the audiotapes is seldom done anymore.
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.