The intelligent man on the street takes a look at the travel ban

The US Supreme Court held oral arguments yesterday on President Trump’s travel ban. Under the ban, nationals from five predominantly Muslim countries (Iran, Libya, Yemen, Somalia and Syria) as well as North Korea, Venezuela and Chad are restricted from entering the United States. The lower courts have been generally skeptical of the ban. Commentators generally concluded after the oral argument that the justices appear ready to uphold the ban. Maybe so. I am more interested in four themes that emerged from the argument.

First, I wonder where the Court’s religious proclivities have gone. Justice Alito, one of the Court’s strongest defenders of religious groups, does not think this is a religious ban. Neal Katyal reminded him that the ban “really does fall almost exclusively on Muslims, between 90.2 percent and 99.8 percent Muslims.” This is important because, as Katyal also reminded him, Alito in a prior case argued that “it raises an inference of religious gerrymander, if ‘the burden imposed falls almost exclusively on those with religious objections.’” The burden in the present case “falls almost exclusively” on Muslims. Alito is not persuaded by himself.

Second, Katyal continuously pressed the justices to impose limits on executive powers, especially in the face of a clear statute and congressional guidelines. This is an old debate, familiar to first year law students. Without such limits, according to Katyal, the President can take a wrecking ball to the statute and countermand Congress’s fine-grained judgments.” Maybe it’s me, but people who were hell-bent to impose limits on executive power during the Obama administration no longer appear so.

Third, some of the justices are concerned that the case is beyond their institutional capabilities. Justice Kagan put this point plainly:

Mr. Katyal, you have a proclamation that says there are important national security interests at stake. And the question is how to do the kind of analysis that you want us to do without in some sense evaluating the adequacy of those national security interests, which for the most part we’ve said courts are not equipped to do.

This is a remarkable concession. The modern Court is comfortable deciding presidential elections, forcing the executive to extend habeas rights to Guantanamo prisoners, striking down congressional districts, and striking down iconic civil rights statutes simply because a majority of justices disagrees with Congress about the state of the world. The Court does not backpedal often. This may be one of those moments. If so, it bears examining why.

This takes me to the fourth and final point: the travel ban case bears a strong institutional resemblance to the political gerrymandering cases. In both cases, conservative justices display a judicial humility seldom seen from them. More interestingly, the resemblance takes me to the Gill oral argument, and Chief Justice Roberts’ hypothetical question: what will the intelligent man on the street think about a decision in the case? The justices asked a similar question yesterday: what will a “reasonable, objective observer” think of this travel ban? Katyal offered the justices an answer: “the best evidence . . . is to look at the wide variety of amicus briefs in this case from every corner of society representing millions and millions of people from the U.S. Conference of Catholic Bishops, which calls it ‘blatant religious discrimination.’”

What say you, Chief Justice?

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