A huge win for President Donald Trump could be on the horizon as the United States Supreme Court has begun hearings on Trump V. Hawaii, the decision that will show whether the oval office has the authority to temporarily restrict immigration from certain countries, be them majority-Muslim or not, should it be decided that it’s within the interest of national security.
According to a recent report from Sabrina Siddiqui of The Guardian, the Solicitor General representing the Trump administration, Noel Francisco, has reportedly swayed two key judges needed in order to swing the court’s decision in the president’s favor. It’s said that Justice John Roberts and Justice Anthony Kennedy have “expressed skepticism” for the motivations of the lower courts to continuously strike down the president’s orders and argue the case isn’t in violation of the constitution — to the dismay of Neal Katyal, the lawyer speaking on behalf of the state of Hawaii among other challengers.
“This executive order is unlawful for three reasons,” Katyal declared:
- “It conflicts with Congress’s policy choices.”
- “It defies the bar on nationality discrimination”
- “It violates the First Amendment.”
“After a worldwide multi-agency review, the President’s acting Homeland Security Secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals.”
Who’s In The Right?
If we were talking about the 2017 controversial “Muslim Ban,” where rushed policy caused large swaths of green-card holders and 5-year-olds to be held in airports, Trump and Francisco’s case would be dead on arrival.
The first order gave no justification why a country was placed on the ban list, no way to prove a country is qualified enough to be removed, no safeguards from keeping the ban permanent and, most importantly, it provided exemption only for religious minority groups (Christians, Jews, etc.) within these Muslim-majority countries — meaning it would violate the safeguards in the First Amendment restricting state establishment of organized religion. The same can’t be said of the third version of the travel ban, however, which doesn’t violate any of the aforementioned measures.
What stands in the president’s way? Other than himself? Well, the existence of the other failed order that could prove intent to enact unconstitutional policy — when this third order could be proven constitutional. Katyal and the liberal justices, such as Justice Elena Kagan, have proven this is in mind with hypotheticals about “out of the box… vehement anti-Semitic presidents” who can order bans of Jews yet can only ban Israelis. This thinking should concern the public, whether they’re in agreement with the order or not, since it puts restrictions of the law based on their judgments of people rather than judgments on the merits of the law itself.
According to Vox, Section 1182(f) of the U.S. Code (passed as part of the Immigration and Nationality Act) gives Trump the authority to suspend the entry of a class of aliens if the executive finds “the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.” Theoretically, this would approve all the previous bans put forth — but America is also as contradictory as religious scripture. The left-wing publication then notes that under the Immigration and Nationality Act — section 1152(a)(1)(A) — the government is prohibited from discriminating on the basis of protected traits such as nationality. This, in effect, cuts the first two bans out completely. Critics, however, have to deal with Francisco’s argument that this is not based on the phobia of countries, but rather their background check status that presents a reasonable barrier to entering the country.
“If you’re too dangerous to fly,” President Obama once said, “you’re too dangerous to buy.” I happen to believe both are true — and liberals may have to come to terms this line of reasoning being thrown at them by the justices.
Where Does The Court Lean?
The only two players gaining media attention are Roberts and Kennedy, the two toss-ups between the liberal side of Ginsburg, Breyer, Sotomayor, Kagan and the usual conservative suspects of Alito, Gorsuch, and Thomas. Outlets like The Washington Post see the justices as more concerned about what future presidents will have the authority to do rather than what Trump is within his rights to do.
Roberts’ bantering with Katyal proves this, offering Hawaii’s defendant the hypotheticals of whether the president can swiftly ban 20 Syrian nationals, potentially able to carry biological weapons, from entry into the country. Katyal answered “yes,” stating in this scenario there would be a clear proven threat — which Kennedy argued may get tied up in the courts for too long with judges without access to the national security of the oval office.
Decisions won’t be made until June, but the ramifications for the future of executive branch power in the U.S. are huge.