WASHINGTON (CN) – In a case that will test the court’s deference to executive power, the Supreme Court will focus Wednesday on President Donald Trump’s executive order blocking immigration from several Muslim-majority countries.
The long-awaited clash at the Supreme Court is over the third iteration of the so-called travel ban, with the White House having amended the first two after court injunctions and public outcry. The first version Trump issued, which led to mass confusion and protest at airports on Jan. 27, 2017, barred anyone from seven Muslim-majority countries from entering the United States.
A second version, issued on March 6, 2017, dropped it to six Muslim-majority countries; two federal courts granted injunctions blocking its implementation. The Supreme Court stayed the injunctions, but Trump’s order expired before the justices could hold oral arguments on it.
Eight countries, six of which are majority Muslim, were covered meanwhile by Trump’s third order, which was issued on Sept. 27, 2017. In addition to barring immigration from Iran, Syria, Chad, Libya, Yemen and Somalia, the order blocked the entry of anyone from North Korea, as well as certain Venezuelan government officials.
In a small move that could have significant implications for the case, however, the administration took Chad off the banned-countries list earlier this month. Stephen Yale-Loehr, an immigration law professor at Cornell Law School, noted that the administration is likely to point to this reversal Wednesday as an example of its careful consideration of which countries are included in the ban.
The challenge before the court originated in Hawaii where the state and a group of lawful permanent residents who have relatives living in countries covered by the travel ban alleged violations ofthe Immigration and Nationality Act and the establishment clause of the Constitution.
Though the court there did not touch the establishment clause arguments, it did issue an injunction under the INA regarding the order’s restrictions on every country but North Korea and Venezuela.
The Ninth Circuit upheld the Hawaii court’s injunction on the INA grounds, and also declined to consider the establishment clause issue, though a federal judge in Maryland issued an injunction in a separate challenge on both the statutory and constitutional grounds. Only the Hawaii case is before the Supreme Court on Wednesday.
Joshua Geltzer, a visiting professor of law at Georgetown Law School, said the case offers questions that might pique the interest of each justice on the Supreme Court, from granular statutory interpretation questions to broader constitutional issues.
“I think of this almost as a buffet case,” Geltzer said. “There are different things for different justices.”
In its briefings, the Trump administration has argued first that the court should not be hearing the case at all, as Congress has not given courts the ability to hear challenges to immigration decisions concerning people who are not in the United States. The administration has also contested the standing of the challengers, saying the order does nothing to infringe their own rights.
As to the INA meanwhile the administration said it gives the president broad authority to make decisions on who can and cannot enter the country, and that the Ninth Circuit was wrong to find those powers require sufficient explanation and should be temporary and only in certain circumstances.
“The court impermissibly substituted its own determinations for the president’s judgment on matters Congress and the Constitution have entrusted to the executive,” the brief states.
Trump’s challengers meanwhile calling his order “without parallel,” arguing that the power Congress gave the president to make immigration decisions is limited.
“The government’s defense of these violations rests on a breathtakingly vast conception of executive power,” the challengers’ reply brief states. “The government asserts that, through two opaque and little-used provisions of immigration law, Congress delegated to the president virtually the whole of its constitutional power over immigration.”
Their brief also says that the INA prevents courts only from considering smaller political decisions, not any executive overreach related to immigration.
“But precedent and the INA bar courts only from second-guessing Congress’ policy choices or individualized exercises of executive discretion,” the brief states. “They do not prevent the judiciary from enforcing congressionally imposed limits on the executive’s authority.”
At the same time, the challengers say the order is strictly aimed at Muslim-majority countries, which, coupled with the administration’s comments and Trump’s campaign proposal to install a “Muslim ban,” means the law runs afoul of the establishment clause of the First Amendment.
Yale-Loehr said the court’s handling of the establishment clause argument could make a major difference in who wins the case. This is because the order could face much lower scrutiny under Supreme Court precedent if it were considered only in the context of the INA, rather than in the light of the First Amendment.
“It really depends on the level of judicial review the court applies,” Yale-Loehr said. “I think that if the court uses the facially legitimate and bona fide reason test, then the government may have a better chance of winning on the statutory claim and therefore the court would not have to address the First Amendment argument.”
Geltzer noted courts generally try to avoid constitutional issues if they can instead decide a case based on a statute, an effort to give the political branches the chance to resolve the dispute themselves.
“If the court were to say here, look, the INA sets out certain things the president can do and can’t do to implement Congress’ vision for immigration in this country and we think the president has exceeded what he can do and he’s butted into what he can’t do, well, that actually invites a conversation,” Geltzer said.
Trump’s public statements on the order, including his tweets insisting on referring to it as a “travel ban,” were featured prominently in the lower court proceedings, and both Yale-Loehr and Geltzer said they are likely to resurface before the Supreme Court.
But Yale-Loehr noted the liberal justices are more likely to be willing to look at the comments surrounding the order than their conservative counterparts, who will more likely want to stick to the text.
“I think that if the court determines that it is limited to the text of the executive order, the government may well win,” Yale-Loehr said. “But if the court determines that it is appropriate to look at external statements, the analogy would sort of be the legislative history behind the executive orders, then I think that Hawaii might have a better chance of winning.”