This morning, I attended oral arguments in Trump v. Hawaii. The only surprise (and a pleasant one at that) was that Lin-Manuel Miranda—the creator of the Broadway smash hit Hamilton—was kind enough to sign my pocket Constitution. (If I had a copy of my pleading in the emoluments clause litigation, I would have asked him to sign that instead.)
— Josh Blackman (@JoshMBlackman) April 25, 2018
Everything else at the Supreme Court went more-or-less how I anticipated. The justices asked questions concerning the scope of the president’s authority, and what the relevant precedents are with respect to construing the establishment clause claims. Unlike the proceedings in the lower court, the justices did not ask about the president’s campaign statements or tweets. Rather, Justice Elena Kagan alluded to his remarks with a series of sharp and perceptive hypothetical questions. On the whole, as Jack Goldsmith noted in June, the Supreme Court has continued to “turn down the temperature” concerning the travel ban litigation. These proceedings should send a signal to parallel litigation on the travel ban and related matters.
In light of the fact that a majority of the court allowed the entire travel ban to temporarily go into effect in December, I expected the same majority to rule that the travel ban could go into effect permanently in June. Nothing I heard at today’s arguments changes that prediction. The more pressing question is how the court proceeds on the statutory and constitutional claims.
Avoid the Statutory Claim Altogether
Early on in the proceedings, Chief Justice John Roberts floated an argument that would be in keeping with his preference for judicial minimalism. Traditionally, under the doctrine of consular non-reviewability, visa decisions by consular officials—that is decisions based on statutory authority—are not subject to judicial review. (This doctrine does not apply to claims based on the Constitution). Were this doctrine to apply, all of Hawaii’s statutory arguments would have to be dismissed.
However, there is one Supreme Court precedent to the contrary. As Hawaii points out in its brief (p. 21), “in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993), the court evaluated whether the president violated various provisions of the INA by invoking his authority under 8 U.S.C. § 1182(f) to ‘suspend the entry of undocumented aliens from the high seas.’” And in a footnote, Hawaii stresses, “In Sale, the Government argued extensively that the plaintiffs’ claims were unreviewable. U.S. Br. 13-18 (No. 92-344); Oral Arg. Tr., 1993 WL 754941, at *16-22. No Justice accepted that argument.” The government counters (p. 22) that “Sale, however, rejected the aliens’ claims on the merits without addressing, much less rejecting, the argument that their claims were unreviewable, and it therefore does not control that issue here.” But of course, rejecting a claim on the merits is an acknowledgment that the claim is reviewable.
There is an easy unravel this knot: Disavow Sale. That argument would not fly in the lower courts, but it works at the Supreme Court. The court could simply concede that the Sale Court was mistaken in ruling that claims under § 1182(f) were justiciable, but, because the court ultimately ruled for the government, the error was harmless. Sale is the outlier. How can it be that individual decisions of a low-level consular officer are not reviewable, but an executive order issued by the President of the United States is? This approach gets the structure of the executive branch backwards.
Short of overruling Sale, Solicitor General Noel Francisco also offered several grounds on which Sale may be distinguished:
The Court in Sale also considered only the aliens’ asserted right under a U.S. treaty and implementing statute not to be returned to their home country, see 509 U.S. at 158-159, whereas the aliens here have no such claim but rather seek entry into the United States. Moreover, the Court in Sale did not question the President’s determination under Section 1182(f) that entry of the affected aliens would be detrimental to the interests of the United States. See id. at 171-172, 187-188. Respondents here, by contrast, have asked the courts to second-guess that very determination.
Parting ways with Sale will allow the justices to avoid the knotty non-delegation and executive powers issues with § 1182(f), as well as the claims of nationality-based discrimination under § 1152(a)(1)(A).
This argument, however, would not resolve the constitutional claims. Kleindienst v. Mandel, as well as Justice Anthony Kennedy’s opinion in Kerry v. Din, recognize that constitutional claims are subject to review. Yet Mandel provides the rule of decision for the constitutional claims.
Apply Mandel, not McCreary
I have contended that the Supreme Court’s domestic establishment clause precedents simply do not apply in the immigration context, and I noted today that there was no indication from the justices today that such precedents, including McCreary County v. ACLU of Kentucky or the dreaded Lemon v. Kurtzman, apply. (Recall that Kennedy joined Justice Antonin Scalia’s dissent in McCreary County.) Rather, the controlling precedent is Mandel. And Mandel only asks if the policy is “facially legitimate and bona fide.” There are two ways of reading this phrase. Does the word “facially” modify only “legitimate,” or does it modify both the words “legitimate and bona fide”? (I discussed this question in depth here.)
If the court holds that “facially” modifies both phrases, then the resolution of this case is straightforward. Such a holding would be consistent with Kennedy’s opinion in Kerry v. Din. The four corners of the presidential proclamation are, without question, “legitimate” and “bona fide.” Neal Katyal, arguing for Hawaii, conceded during arguments that if then-candidate and now-President Trump had not made the statements that he made, the establishment clause question would vanish. A review of the four corners of the document is apiece with not considering Trump’s statements.
If there is a majority of the court willing to uphold the travel ban, the two suggestions I discussed above would neatly resolve the statutory claim and dispose of the constitutional claim.