“What if the ban were against Israelis?” The US Supreme Court’s hypothetical questions on Trump’s travel ban

Supreme court justice Elena Kagan was skeptical about Trump’s travel ban.
Supreme court justice Elena Kagan was skeptical about Trump’s travel ban.
Image: Reuters/Yuri Gripas
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The best way to sort out the tricky legal issues around Donald Trump’s travel ban might be through hypotheticals.

At least that was the approach taken by several US Supreme Court justices during a Wednesday hearing on the Trump administration’s policy that bars travelers from several Muslim-majority countries from coming to the US.

The case against the government, which was filed by the state of Hawaii, was batted around for months between lower courts before reaching the supreme court. Its justices are being asked to weigh in on two main questions: Whether Trump has the authority to impose the ban, and whether the executive action discriminates against people on the basis of their religion in violation of the US constitution.

The supreme court likely won’t issue a ruling on the case for at least a couple of months, but on Wednesday, the justices peppered the lawyers on opposing sides with a series of hypothetical situations that distilled the gnarly debate into simple yes-or-no questions.

Here are a few of those questions, which offer a glimpse into where each justice stands.

What if the ban were against Israelis?

Lawyers for the federal government have argued that Trump has full authority to impose a travel ban on grounds of national security, and that the president’s rationale shouldn’t be subject to review by the courts. (They base this argument on a 1972 US Supreme Court decision in Kleindienst vs. Mandel, which determined that courts should let a presidential immigration policy be if it’s based on a “facially legitimate and bona fide reason.”)

On Wednesday, justice Elena Kagan asked whether the government would feel differently if the travel ban had been imposed against Israelis by a president “who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency.”

Noel Francisco, the government’s lawyer, argued that even in a scenario in which the president harbored animus “in his private heart of hearts,” he would be allowed to carry out the ban if it was based on advice from his cabinet on national security grounds. But, he added, Kagan’s scenario was hard to imagine, given that Israel is a close US ally in combating terrorism.

“This is an out-of-the-box kind of president in my hypothetical,” responded Kagan, drawing laughter.

“We—we—we don’t have those, your honor,” responded Francisco.

What if a mayor made hateful comments and then acted on them?

Justice Anthony Kennedy came up with his own hypothetical case to weigh whether Trump’s comments on Muslims during the campaign should be taken into consideration:

Suppose you have a local mayor and, as a candidate, he makes vituperative…hateful statements. He’s elected, and on day two, he takes acts that are consistent with those hateful statements…whatever he said in the campaign is irrelevant?

Yes, argued Francisco, because Trump made his campaign statements as a private individual, before he took an oath to act as a head of a government. “That oath [of public office] marks a fundamental transformation,” Francisco said. Also, he added, the comments Trump made are not related to the ban. “This is not a so-called ‘Muslim ban.’ If it were, it would be the most ineffective Muslim ban that one could possibly imagine,” because it excludes the vast majority of the Muslim world, he said.

What if the president had information that 20 Syrians were about to attack the US?

Chief justice John Roberts focused on an entirely different topic in his line of hypothetical questioning: the leeway a president has to protect the US from imminent danger.

If the president had information that some Syrians had plans to bring chemical weapons into the US, asked Roberts, could he or she ban all Syrian citizens from entering that day? How about if federal intelligence agencies predicted the attack was going to happen a week or a month later?

Neal Kaytal, Hawaii’s lawyer, said the president would have that authority in “an emergency fast-moving situation” like the one described by Roberts. But, he said, the travel ban purports to address the threat of other countries refusing to cooperate with US authorities to keep dangerous individuals out. That’s not an emergency, but a long-standing issue Congress has already decided to address through extreme vetting. Trump, Kaytal suggested, also has the power to push Congress to change the law if he feels it’s warranted. “He’s never even introduced legislation about this,” said Kaytal. “So we’re so far from that hypothetical.”

Roberts responded by presenting yet another hypothetical case: “Imagine, if you can, that Congress is unable to act when the president asked for legislation.”

Congress has already acted “in a robust way,” answered Kaytal, listing as examples the biometric IDs and in-person interviews required of foreign travelers to the US.

But what if the danger is so severe that those measures are insufficient?

Justice Samuel Alito asked the question again, presenting a less detailed scenario in which “the threat of the infiltration of the United States by terrorists was so severe with respect to a particular country” that the measures passed by Congress are inadequate. Would the president be allowed to ban citizens from that country then?

Kennedy added: Do courts have the obligation to review whether there’s a national emergency that justifies that presidential leeway?

Kaytal said yes, the president is allowed to act on an emergency, and no, the courts don’t have to weigh in. But that’s not what this case is about, he added. Rather, he said, it is about whether the president has the authority to modify laws that Congress already passed—specifically, lawmakers’ decision not to discriminate on the basis of nationality. The travel ban, he added, is in violation of that.

He later expanded:

Our fundamental point to you, though, is that Congress is in the driver’s seat when it comes to immigration, and that this executive order transgresses the limits that every president has done with this proclamation power since 1918. And to accept it here is to accept that the president can take an iron wrecking ball to the statute and pick and choose things that he doesn’t want for purposes of our immigration code. That can’t be the law of the United States.