The Supreme Court and Trump v Hawaii
Today is the final day of oral arguments before the Supreme Court for the October 2017 term. This term promises to be one of the most eventful in recent memory, with a lot of high profile - and probably controversial - decisions set to come down between now and late June/early July, which is when the Court traditionally begins its summer recess. So its only fitting that the Court ended oral argument sessions for this term by considering this morning a high-profile, hot-button case dealing with President Donald Trump's September 2017 ban on foreign travel from eight countries. This is the third such order coming from the Trump White House; it is a more nuanced attempt to protect the nation's national security interests than two earlier travel bans - issued in January and March 2017 - that met considerable resistance from the public ... and the lower federal courts.
When the Court finally does issue its decision I'll provide more in-depth analysis of the holdings. For the time being, I'll just mention that briefs submitted to the Court, and the Court's initial grant of certiorari, suggest four key issues to be decided. First, is the threshold issue of whether the Court even has the power to hear and decide this case, since a strong argument has been made that the issue is "non-justiciable," i.e., is an issue that should be left to the political branches of our government. The second issue is a technical one, dealing with a lower federal district court order, issued earlier in the history of the case, that established a world-wide ban on enforcing President Trump's directive. The Administration argues that this world-wide ban was too broad and exceeded the lower court's power. Administration lawyers argue that if the lower court's expansive ban was valid at all, it should have been limited in its enforcement only to the parties of this present dispute.
The other two issues are the substantive heart of the matter, and will be the ones that get the most attention if the Court does indeed agree that the case is justiciable. These two issues are whether the ban violates the Establishment Clause of the First Amendment, and whether President Trump's order exceeds the relevant constitutional and statutory grants that give to the President primary responsibilities over national security and immigration. The Administration has argued, primarily, that this particular ban - unlike the previous two - does not operate to prohibit foreign-born nationals from traveling to the United States on account of their Islamic faith. This is so primarily because of the inclusion, in this third iteration of the travel ban, of two nations - North Korea and Venezuela - that don't have significant Islamic populations at all. And the Administration asserts, essentially, that the President has near plenary authority over immigration issues, particularly as they might, in his judgement, impinge on national security concerns.
The excellent Supreme Court reporter/blogger Amy Howe, who attended this morning's oral arguments, has just tweeted that the Q+A in today's oral arguments strongly suggest that the Court will leave the immigration ban order alone. She thinks that only Justices Sotomayor and Ginsburg, based on the questions asked of counsel, are firmly in the opposition camp.
This is of course good potential news for President Trump, but not so much for the State of Hawaii and the other litigants who hope for an affirmation of the injunction put on the ban by the lower federal courts.
My more in-depth analysis of the case will come when the final decision comes down, probably in the early part of this summer. I look forward to delving much deeper into the issues at that time, especially those concerning the Establishment Clause and the power of the Executive Branch.
When the Court finally does issue its decision I'll provide more in-depth analysis of the holdings. For the time being, I'll just mention that briefs submitted to the Court, and the Court's initial grant of certiorari, suggest four key issues to be decided. First, is the threshold issue of whether the Court even has the power to hear and decide this case, since a strong argument has been made that the issue is "non-justiciable," i.e., is an issue that should be left to the political branches of our government. The second issue is a technical one, dealing with a lower federal district court order, issued earlier in the history of the case, that established a world-wide ban on enforcing President Trump's directive. The Administration argues that this world-wide ban was too broad and exceeded the lower court's power. Administration lawyers argue that if the lower court's expansive ban was valid at all, it should have been limited in its enforcement only to the parties of this present dispute.
The other two issues are the substantive heart of the matter, and will be the ones that get the most attention if the Court does indeed agree that the case is justiciable. These two issues are whether the ban violates the Establishment Clause of the First Amendment, and whether President Trump's order exceeds the relevant constitutional and statutory grants that give to the President primary responsibilities over national security and immigration. The Administration has argued, primarily, that this particular ban - unlike the previous two - does not operate to prohibit foreign-born nationals from traveling to the United States on account of their Islamic faith. This is so primarily because of the inclusion, in this third iteration of the travel ban, of two nations - North Korea and Venezuela - that don't have significant Islamic populations at all. And the Administration asserts, essentially, that the President has near plenary authority over immigration issues, particularly as they might, in his judgement, impinge on national security concerns.
The excellent Supreme Court reporter/blogger Amy Howe, who attended this morning's oral arguments, has just tweeted that the Q+A in today's oral arguments strongly suggest that the Court will leave the immigration ban order alone. She thinks that only Justices Sotomayor and Ginsburg, based on the questions asked of counsel, are firmly in the opposition camp.
This is of course good potential news for President Trump, but not so much for the State of Hawaii and the other litigants who hope for an affirmation of the injunction put on the ban by the lower federal courts.
My more in-depth analysis of the case will come when the final decision comes down, probably in the early part of this summer. I look forward to delving much deeper into the issues at that time, especially those concerning the Establishment Clause and the power of the Executive Branch.
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