The Supreme Court will close out arguments for the term on Wednesday by weighing the constitutionality of President Trump’s third attempt to block nationals from majority-Muslim countries from entering the United States.
Hawaii’s state government, the Muslim Association of Hawaii and three individuals have been battling different iterations of the ban Trump contends is needed for national security for the last 15 months, arguing it’s tainted with animus towards Muslims.
Hawaii argues the latest ban unconstitutionally discriminates against Muslims and exceeds the president’s powers over immigration delegated to him by Congress.
The administration says the president has broad constitutional and statutory authority to limit immigration.
The Supreme Court initially agreed to consider Trump’s second order, which banned people from Iran, Libya, Syria, Yemen, Somalia and Sudan. It then dismissed that case as moot when the ban expired before the scheduled arguments.
Trump’s latest ban, issued by a presidential proclamation, swaps Sudan for Chad, and made the restrictions on travelers from the effected countries indefinite. Chad has since been dropped from the list.
The proclamation also included new restrictions on nationals from North Korea and government officials from Venezuela, but those provisions are not being challenged in this case.
In December, a majority of justices agreed to allow the president’s full ban to take effect, temporarily blocking a Ninth Circuit Court order that kept the administration from banning the entry of foreign nationals who have a bona fide relationships with a person or entity in the U.S.
Justices Sonia Sotomayor and Ruth Bader Ginsburg were the only justices that publicly said that they would not have let the ban go into effect.
It’s not clear if the court’s other two liberal justices also opposed the ban.
It takes five justices to agree to a stay a lower court order, however, so Justice Anthony Kennedy, its swing vote, probably voted to block the Ninth Circuit Court order.
That decision has led some observers to believe the court is likely to allow the ban to remain in place.
“The fact that the court granted a complete stay in December shows at least Kennedy is comfortable with this going into effect,” said Josh Blackman, an associate professor of law at the South Texas College of Law in Houston.
“And in terms of irreparable harm, the ban has been in effect for four months and the world hasn’t stopped. People have been moving on with their lives and there hasn’t been this travesty.”
But Ian Samuel, a Climenko fellow and lecturer on law at Harvard Law School, isn’t convinced Kennedy is in the Trump camp on this one.
“Nothing would be less extraordinary than Justice Kennedy changing his mind,” he said.
Samuel argues Kennedy is likely to side with Hawaii’s argument that that travel ban is a clear case of unconstitutional religious discrimination. He also said it’s possible that argument could pull Chief Justice John Roberts into the majority for a 6-3 ruling in favor of the state.
It wouldn’t be out of character for Roberts, thinking of his own legacy as chief, to go along, he said.
Michael Gerhardt, a constitutional scholar in residence at the National Constitution Center and professor at the University of North Carolina School of Law in Chapel Hill, said the thing to watch Wednesday will be whether the justices focus on the statutory or constitutional arguments.
He said Hawaii has a strong argument that Trump chose the countries he did specifically because they are predominantly Muslim.
“The more the challengers are able to get into that argument the better they will be,” he said.
But the administration argues the proclamation’s process and substance dispel any plausible argument that it had religious animus as its “official objective.”
“Its tailored restrictions draw no religious distinctions and were adopted after a worldwide review of security risks by multiple agency heads whose motives have never been questioned,” the government argued in briefs.
Gerald Neuman, a J. Sinclair Armstrong Professor of International, Foreign and Comparative Law at Harvard Law School, said courts generally try to reach the statutory argument first as a matter of constitutional restraint.
“You don’t rush to decide a constitutional question when there are other issues that could give the same outcome,” he said.
But civil rights advocates and some legal experts say Trump’s animus towards Muslims has been made apparent from his public comments and tweets, during the campaign and since his election.
In briefs, Hawaii noted that Trump on the campaign trail promised “a total and complete shutdown of Muslims entering the United States,” and while in office re-tweeted anti-Muslim videos and repeatedly linked his latest proclamation to his campaign promises.
Sirine Shebaya, a senior staff attorney for Muslim Advocates, said Trump’s nomination of CIA Director Mike Pompeo for secretary of state is an example of his bias.
The New York Times reported Pompeo was critical of American Muslim leaders for what he called their “silence” in response to the Boston Marathon bombing.
“It’s very rare to have a case where anti-Muslim animus is so clear on its face and set in the context of so many other policies and nominations that denigrate a particular religion,” Shebaya said.
“We hope the Supreme Court looks at this case against this broader context.”