Supreme Court Justices Face a Historic Choice Regarding Presidential Power

Court asked parties in case against President Trump's travel ban to brief the justices on a legal issue not considered originally.

The case against President Trump’s travel ban, like a lingering illness, seems to have been with us forever, but is just celebrating its first birthday. Now that the Supreme Court has accepted one of the two challenges to the order, the end is in sight.

The Court on January 19 announced it would consider Trump v. Hawaii, the challenge heard in the District of Hawaii and then the Ninth Circuit. But its order also included a request for the parties to brief the Court on a legal issue not considered in those cases: Whether the latest order, dated September 24, violates the First Amendment’s prohibition on “an establishment of religion.”

What does this briefing order mean? Probably only that the Court wants to hear this stinker of a case once and only once. The establishment issue is not formally before the Court, but it’s out there lurking in a second challenge to the ban, still pending in the Fourth Circuit. In an earlier case challenging Travel Ban 2.0, that appeals court had held in broad terms that the earlier ban “likely” violated the Establishment Clause; it may very well hold the same this time.

In an interview, Professor Ira C. Lupu of George Washington University Law School attributed the order to a desire “to resolve all the challenges” at one time. The establishment question, he pointed, out, has “certainly been briefed on both sides.” Better to decide it now.

What if the Court wanted to decide this case on establishment grounds? Many people—me included—think the whole travel-ban episode is a gross violation of the rule against establishing religion. But even if justices want to go there, there are daunting obstacles to an establishment decision; indeed, the path reminds me of the 1981 video arcade game Frogger, in which a player must guide a frog across a busy highway, dodging speeding cars and trucks, perennially in danger of being squashed like a pancake.

Here are the trucks hurtling toward our Establishment frog.

1. Start with “standing,” which is the rule that litigants in federal court need to have a real dog in any courtroom fight. That’s called “injury in fact.” In most cases it’s easy to establish—the government has jailed, fined, or discriminated against me as an individual. In some establishment cases it’s trickier, because the government could “establish religion” and hurt everybody equally. Imagine a proclamation by the president that “Christianity is the official religion of the United States.” In establishment terms, it’s as bad as it can be—but could I, or anyone, show that it hurt me in particular?  The Court over the years has bent “standing” rules to allow some lawsuits—if the government is appropriating tax money to help or harm religion, or forcing particular citizens to confront official endorsement of a particular faith. But the Court has been cutting back, not expanding, religious standing in the past 20 years.

Assume that the ban is directed against Muslims. Who can claim “injury in fact”? Not Muslims outside the country; in general, non-Americans in other countries don’t have any access to constitutional claim. The plaintiffs in the current cases have alleged specific injuries; the individual Muslim plaintiffs complain, for example, that the ban is keeping close family members from visiting or emigrating.

That’s a perfectly logical basis for “standing,” and one the Court has recognized in an earlier case involving a controversial foreign speaker. Citizens inside the U.S., it said, have a First Amendment interest in hearing from foreigners—but in that case, the Court, having found standing, then rejected the challenge to the exclusion. The Court sometimes seems to use standing as a dodge rather than a doctrine: Like the dealer in a game of three-card monte, it is capable of turning up a deuce when you could swear it had turned over a queen.

2. Next, consider the problem of “illicit motive.” The first travel ban’s text used some religious language; refugees from the majority-Muslim countries would be admitted if they were “religious minorities”—that is, most probably, Christians. Ban 3.0 avoids religious terms and simply targets certain countries; two of them—North Korea and Venezuela—are not majority Muslim.

But most people with eyes and ears know what’s going on. From the initial campaign proposal of a “total and complete shutdown of Muslims entering the U.S.” to recent winks and nudges on his presidential Twitter feed, Trump has insisted that 3.0 is the same as 1.0 and that even stronger measures are on the way. That evidence is the classic trout in the milk; but will the Court even look at it?

In equal-protection cases, the Court has long said, these kinds of statements can be evidence of an intent to discriminate. But the Court has been slow to bring the “motive” into establishment cases. Establishment-clause cases ask what a law’s “purpose” was, which almost always simply involves reading the law itself. In one leading “free exercise” case, the Court examined the legislative debates surrounding an ordinance banning “ritual slaughter” and concluded that “the object of the ordinances” was “to target animal sacrifice by Santeria worshippers.” It did the same in a case involving a tax law explicitly aimed at the Rev. Sun Myung Moon’s Unification Church. But in both cases, those statements were made in official proceedings; the Court made no use of unofficial statements by political or religious leaders.

Dissenters in the lower courts have been scathing about those courts’ use of campaign statements and tweets to prove Trump’s motive. In the Ninth Circuit, then-Judge Alex Kozinski protested that “[e]ven if a politician’s past statements were utterly clear and consistent, using them to yield a specific constitutional violation would suggest an absurd result—namely, that the policies of an elected official can be forever held hostage by the unguarded declarations of a candidate.” Judge Paul Niemeyer of the Fourth Circuit added, “the new rule would by itself chill political speech directed at voters seeking to make their election decision.”

Previous immigration cases, in particular, suggest that courts should simply note the words of a government order rather than considering its context, purpose, or intent. Though anyone with a Twitter feed has seen the ugly pattern in Trump’s incitement of hatred, the Court may be unwilling to open that door.

3. Finally, the specific immigration context. From the late 19th century until today, the Court has seldom even hinted at constitutional limits on the federal power—shared by Congress and the president—to exclude or expel aliens for any reason. If this “plenary power” doctrine is applied rigorously, it would mean that a court could not intervene even if Trump proclaimed “I find that only white Christians should be allowed into the U.S.” The Court hasn’t reaffirmed “plenary power” recently; but is it ready to jettison it in one fell swoop? It’s hard to imagine the Court reaching out to substitute its own national-security judgment for the president’s—any president’s—unless it had no other way to decide a case.

In fact, future presidents, not this one, may weigh on the minds of the justices in general. “The fundamental question [of this case] is whether this president gets the same deference that every other president gets,” Douglas Laycock, a law professor and religious-freedom expert at the University of Virginia, told me.

Lower courts have, to say the least, treated Trump and his motives with some skepticism. That may be a problem. Professor Michael McConnell of Stanford Law School, a former judge of the Tenth Circuit, told me that he has “a suspicion that the Supreme Court thinks the lower courts are out of control.”

Whether that’s true or not, the lower courts plainly think the advent of Trump and his bans is an almost unprecedented emergency. Why wouldn’t they? They’ve had to deal with the surprise issuance of the first ban, its sloppy, lawless language, the chaos at airports because no one prepared the bureaucracy for the ban, the emergency hearings demanded by government lawyers who then showed up complaining about the courts’ haste, the extravagant claims for deference made by those same ill-prepared lawyers, the president’s open contempt for courts and “so-called” judges, his attempts to intimidate the Ninth Circuit, and the anonymous death threats against District Judge Derrick Watson.

Does the Supreme Court feel the same way? For that matter, should it? Within the whispery confines of the palace at First Street N.E., the captains and the shouting are often heard, if at all, in muted form. And perhaps that kind of detachment is what we want from a court.

What would an ideal justice do? Should he or she take note of the urgent circumstances of 2018, or reflect on the nature of the executive power as laid out by Montesquieu and Alexander Hamilton, and wielded by Lincoln, Franklin Roosevelt, and Barack Obama?

Either approach has its perils. Lean one way, and the Court enters bare-knuckle politics, and risks hobbling the government decades hence; lean the other way, and history may write of the Roberts Court that it was as willfully blind as the Court of Harlan Fiske Stone, which deliberately closed its eyes against the lawlessness of the Japanese Internment.