Now that we’ve had a moment to reflect on the clash of arguments that were recently presented before the Supreme Court in the case of Trump v. Hawaii, No. 17-965, the nation is again faced with an existential question. The Supreme Court, as the final arbiter of issues, was asked to deal with the culmination of the long battle of views about immigration in the lower courts.
The origin of this case started with President Trump’s first travel ban issued in January 2017 that initially restricted travel from eight countries – Iran, Libya, Syria, Yemen, Somalia, Chad, Venezuela and North Korea. That ban was promptly blocked by lower courts on the basis that the travel ban was tainted by a anti-Muslim animus since the restrictions for the most part blocked citizens from those countries from immigrating to the United States. Further, in many instances the nationals from those counties were barred from working, studying or traveling to the U.S. Following lower court prohibitions, Trump issued two more refined versions of the travel ban that encountered similar court problems, with the third version ending up in the Supreme Court in this case.
The Washington Post succinctly summarized the case made out by President Trump’s lawyers.
“Though Congress designed an immigration system requiring strong checks on travelers, the government argues that lawmakers also gave the president vast authorities to ignore this system and create his own, pointing to statutory language that allows the executive to turn away “any aliens” on national security grounds. Further, because the ban is construed as a national security policy, the Trump administration argues that the courts should show deference to the president’s judgment, as he is privy to information that judges are not, and allow the ban’s implementation as long as the government provides some national security rationale.”
The key issues that were raised during the course of argument before the court were: whether candidate Trump’s anti-Muslim pronouncement of a “total and complete shutdown of Muslims entering the United States” carried forward into his actions as President, whether President Trump had the legal authority to issue the ban, whether judges should second-guess the president on national security issues, whether the normal substantial deference applied to presidential actions applied in this instance, and what effect would the decisions in this case have on the upcoming Deferred Action for Childhood Arrivals or DACA cases that are likely to reach the Supreme Court in the days ahead.
From the way the five-member conservative majority was questioning the attorneys appearing before the court, it appeared that the court was ready to uphold the travel ban. In essence it seemed like the court was ready to declare that the measures taken by the administration were sufficient to repair any deficiencies the previous travel bans had and that, as Chief Justice Roberts intimated, there must be a “statute of limitations” on campaign pronouncements.
As for the argument in favor of President Trump’s ban, it is hard not to notice that it is similar in nature to the argument made a few years ago about weapons of mass destruction in Iraq. There too, despite doubt, the nation was invited to accept the administration’s contention that it was right about the danger to the country posed by the Saddam Hussein regime. At the heart of the travel ban is the fear that our immigration vetting system may be failing us because it is not “extreme” enough to prevent would-be terrorists from entering the United States. Yet according to Immigrant’s List, a pro-immigrant group, since 9/11 the risk of vetting failures has dropped by 99 percent in the face of some 380 million immigration approvals. Despite this apparent immigration vetting successful record, according to that group, due to the travel bans, admissions of Muslim refugees has dropped by over 90 percent.
So this nation is again asked to accept the administration’s assertions about national security. Whether you think the fear is genuine or drummed up, pretty much determines where you stand on the question of whether immigrants from the countries subject to the travel ban should be allowed to come to the United States. At the moment, it appears the Supreme Court is ready to side with those who argue there is a clear and present danger from those countries and that our immigration vetting system cannot be trusted to protect us. The key justices that will make the difference are Justice Anthony Kennedy and Chief Justice John Roberts because they are the swing justices on the bench, sometimes siding with the liberals and sometimes with the conservatives. Although it’s always risky to make predictions based on the oral argument, it’s difficult to see how the case can pick up the five votes that it needs to strike down the president’s order. Or is it?
This article is reprinted from an article formerly published in the Forbes.