A majority of justices on the Supreme Court in late June – my best guess is Monday, June 25 – will endorse the Trump administration's latest travel ban not because it is just, moral, necessary or even sensible, but because the Constitution and Congress have given presidents, even a president like Donald Trump, vast executive power over refugees and immigration. That the question is even a close one today is a reflection of how much damage the president created with his relentless bigotry toward Muslims and the general incompetence with which the first two travel bans were rolled out.
The historic oral argument in Trump v. Hawaii, which you can listen to here, reminds us that the ban debated Wednesday morning in Washington is different from that first travel ban the administration chaotically tried to impose on the world early last year. That ban, fueled by the virulent white nationalism behind all of this, was an ugly, racist stab at a religious minority so patently discriminatory in its purpose and its effect that it shocked the conscience of federal judges of all political stripes. It never would have survived Supreme Court scrutiny despite the court's odious history of tolerance toward official racial and religious discrimination.
But the ban discussed in Washington this week was instead both a gussied-up and a watered-down version of that original ban, lawyered-over by bureaucrats and functionaries to narrow its scope and make it palatable to at least five justices on the most conservative Supreme Court in 75 years. We know today that it is palatable not just because of how the oral argument went down, but because the court's five conservatives in December allowed the ban to go into effect while the litigation is pending. To them, this isn't a humanitarian crisis. It isn't an emergency. It's a lawsuit, no matter what the president or tribunes are saying about it.
The first ban was sweeping and came with virtually no considered judgment by the federal government to justify it, nor plan with various federal agencies to effectively implement it. The second ban didn't reach as far, but was still infected with the same religious animus and lack of justification that doomed the first iteration. The current executive order, Ban Number Three, barred with very few exceptions travel to the United States from eight countries: Iran, Libya, Syria, Yemen, Somalia, Chad, Venezuela and North Korea. Six of those countries are predominantly Muslim and one of those countries, Chad, already has figured out a way to remove itself from the list.
There are a few key questions in the case. One is whether Ban Number Three unlawfully encroaches on Congressional authority over immigration. Another is whether the ban violates the Constitution because it impermissibly targets a religious group. And a third is whether all that post-hoc rationalization by Trump administration officials – all the vetting that accompanied the third ban that was not present in the first two – allows the court to essentially overlook the ugly way in which this started. All three points were discussed during Wednesday's argument. None of those discussions ought to give opponents of the ban much encouragement that five justices are going to ride to the rescue.
If you read the transcript, you'll notice there were only two real moments where the justices and lawyers spoke of the president and his anti-Muslim views and statements. Justice Elena Kagan broached the issue in the abstract when she offered up a hypothetical about an administration's imposition of an anti-Jewish ban, as opposed to the anti-Muslim ban, which is what so many experts still see in this latest executive order. And Chief Justice John Roberts brought up Trump's statements later in the argument when he asked Neal Katyal, the lawyer for the challengers: "Is there a statute of limitations on that, or is that a ban from presidential findings for the rest of the administration?"
Roberts' question toward the end of the debate wasn't just clever – it also was telling. The Court's conservatives seem ready, even eager, to discount the legal impact of the president's bigoted statements now that the administration constructed "cabinet-level recommendations" (read: plausible justifications) around those comments for the dramatic change in refugee policy. Pay no attention to that man behind the curtain, Solicitor General – and perhaps future Attorney General – Noel Francisco might well have said to his audience (even as he acknowledged the justices had a right to look beyond the "four corners" of the order itself).
The three amigos – Justices Samuel Alito, Clarence Thomas and Neil Gorsuch – are going to side with the Trump administration, probably to the fullest extent possible, even though the "man behind the curtain" keeps making discriminatory comments toward Muslims. Chief Justice Roberts and Justice Anthony Kennedy also seem ready to endorse the ban. I didn't hear anything from the swing justice, for example, suggesting that he's seeking out middle ground here, the way he often does when he's seeking compromise behind the scenes. And then there is the really bad news for the challengers: It seems as though both Justice Kagan and Stephen Breyer were searching for ways to endorse the ban in some limited fashion.
It's always dangerous to predict the outcome of these cases based on oral arguments, and maybe I have this all wrong. But there is no way the perceived math here adds up to even a tie or a modest victory for those opposing the ban. Why? Because the Supreme Court, by both its nature and its history, is almost always looking to avoid a fight with the executive or legislative branches if it can. Why else? Because the Trump administration was always fighting here on favorable ground, not just because of the Court's ideological makeup, but because of the nature of immigration policy, presidential power and its place within the law.
I know, I know. One could have said the same thing about the Obama administration's immigration program, which an eight-member court refused to endorse. That case about the scope of presidential power likely would have turned out differently had Merrick Garland been given an up-or-down vote in the Senate, something congressional Republicans refused to do. In Garland's place Wednesday was Trump's man on the Court, Neil Gorsuch, darling of the Federalist Society, who was surprisingly modest in his questioning. Then again, he didn't have to say much. He is, after all, a living, breathing, voting reminder of where the power resides today in all three branches of the federal government. And until that changes, the most vulnerable among us will be even more vulnerable still.