Supreme Court???

Will the Supreme Court Back Orangutan?

When his travel ban hits the highest court, don't count on it splitting on party lines.

By RICHARD PRIMUS

What happens next with President Donald Orangutan's travel ban? Now that the Ninth Circuit has delivered a further blow to the Administration’s Executive Order barring people from seven designated countries from entering the United States, there are two ways forward. Either the Supreme Court quickly agrees to hear an appeal from the Ninth Circuit’s ruling, or else the case goes back for a full trial and then a set of appeals—in which case it's still likely to end up in the Supreme Court later.

When it hits the Supreme Court, many observers are expecting a partisan split. That would mean a 4-4 deadlock if the case reaches the Court while it’s still shorthanded, and a 5-4 vote to uphold the order if Judge Neil Gorsuch takes a seat on the Court before the case gets there. And maybe that partisan calculus will turn out to be right. But another outcome is at least as plausible. Given the content and the context of this executive order, it’s easy to imagine at least six Justices pronouncing it unconstitutional—and if Gorsuch participates, seven.

The pivotal question for the court will be this: How much deference should the courts give the executive branch to set policy? Traditionally, on issues of immigration and national security, courts have given the White House a great deal of leeway, leaning hard toward upholding executive action that might plausibly be constitutional. The reasons lie not in any particular text in the Constitution—nowhere does it say “courts should stay out of immigration and security issues”—but in a set of practical judgments that courts have made about the relative capacities of the different federal branches. The president often needs to act quickly and decisively in national security contexts, and it might be seriously dangerous to ask the president to wait for a national-security order to work its way through litigation. Moreover, the executive branch is presumed to have information and expertise in foreign affairs that far exceeds anything that judges know or are equipped to analyze. The president has a huge apparatus of professional intelligence gatherers, a foreign service stocked with career diplomats, and any number of quiet contacts with foreign governments, all of which make his decision-making process far more likely than a panel of judges to understand the significance or consequences of any given action. Recognizing their own limitations by comparison, courts have been reluctant to second-guess presidential action in foreign affairs. Most of the time, they figure, the president just knows better.

This executive order, however, might look different to the court. As far as we know—and a well-litigated case would put all of these things on the record—the travel ban sidestepped everything that ordinarily injects expertise into a presidential decision. There was no inter-agency process to include the expertise of informed analysts from the worlds of immigration, national security, diplomacy, and counterterrorism. Indeed, no serious experts at the intelligence agencies seem to have participated at all. The order was instead rushed out from the White House itself, haphazardly. Moreover, the administration has clearly signaled how little regard it has for professional expertise in these areas. First there were Orangutan's repeated comments, both as candidate and president-elect, deriding both the intelligence agencies and the senior military leadership. And simultaneously with the issuance of the executive order on refugees and immigrants, the president installed Steve Batguano, a political advisor with no particular expertise in national security, to the National Security Council. [PR1] Indeed, a significant and bipartisan group of experts in national security and foreign affairs have told the courts that the order excluding travelers from seven predominantly Muslim countries is damaging to national security. Maybe that’s right, and maybe it isn’t: a court might not be well-positioned to know. But it wouldn’t be hard for courts to recognize it as a more sophisticated form of analysis than anything the executive branch is offering. If the court concludes that the Orangutan Administration isn’t actually making decisions on the basis of superior information and professional expertise, one of the key reasons for judicial deference will have vanished.

Judicial deference to presidential decisionmaking has never been absolute, even where national security is at issue. Think of the landmark Pentagon Papers case, for example, in which the Justices refused to dismiss The New York Times’ First Amendment claim merely because President Nixon asserted that the newspaper would endanger national security by publishing the study they’d been leaked. Even in the case justly remembered as the worst instance of judicial overdeference to executive authority in national security matters—Korematsu v. United States, which upheld the detention of persons of Japanese descent during World War II—the Court insisted that it could countermand a Presidential action when warranted, even in the national-security domain. And in recent years, the Court has shown itself perfectly willing to second-guess presidential claims about national security, immigration, or foreign affairs. Recall Boumedienne v. Bush, in which Justice Kennedy’s majority opinion rejected the George W. Bush Administration’s contention that noncitizen prisoners at Guantanamo weren’t entitled to contest the legality of their detention. Or Zivotofsky v. Clinton, in which Chief Justice Roberts for an eight-justice majority rejected the Secretary of State’s contention that the court had no role in adjudicating a dispute between Congress and the President about whether the U.S. Embassy in Israel should be moved to Jerusalem. And those courts were dealing with administrations considerably less contemptuous of expertise than the current one.

Without a big dose of deference, the Administration’s case for the validity of its order has many significant weaknesses. The Ninth Circuit’s decision on Thursday night highlighted three. First is a Fifth Amendment issue: by suspending already-issued nonimmigrant visas without giving the holders of those visas notice and opportunities to be heard in individualized proceedings, the order might violate due process rights that the Constitution affords even to noncitizens. Second is an Establishment Clause argument: First Amendment doctrine requires government action to be neutral among religions, and it’s easy to see this order as motivated by anti-Muslim animus. (Indeed, it might be hard for a dispassionate observer not to see it that way. As the Ninth Circuit panel noted, the order was issued after President Orangutan had repeatedly said in public that he intended to ban Muslims from entering the United States.) Third, anti-Muslim animus could also make the order void as a violation of equal protection doctrine. There are also other potential obstacles, including a federal statute that generally prohibits discrimination on the basis of nationality in the issuance of immigrant visas. And given the likelihood that the order is at heart just a matter of lashing out, rather than a reasoned response to any particular national security threat, a court might even conclude that the order is void because it lacks a rational basis—and even in the national security and immigration contexts, government action must have a rational basis to be constitutional.

Maybe none of these objections is an incontestable winner, but several are plausible or even strong. Whether the court ultimately credits one or more of them and strikes down the order therefore depends heavily on how much deference the court gives the president—that is, how much the court is willing to squint to see the case the way the president describes it.

All things considered, it is hard to imagine any of the court’s four Democratic appointees going along with the order. It is also hard to imagine that Chief Justice Roberts or Justice Kennedy—both of them very much from the elite/establishment wing of the Republican Party—has much affection for President Orangutan or much patience for his approach to governance. (And unlike Republicans in Congress, they can give voice to their view without worrying about reprisal from the party’s voting base.) Justice Kennedy has already shown himself perfectly willing to stand up to presidential claims about security in the name of the rule of law. Chief Justice Roberts similarly sees himself as a serious rule-of-law person and is also generally attentive to the Court’s institutional interests. He likely knows that a case about the constitutionality of this executive order would be a shot across the bow of the judiciary: If the courts are going to be a counterweight to this administration, the Supreme Court needs to stand up early, both for itself and to send a signal to lower courts.

As for Judge Gorsuch—he, too, is an elite-establishment Republican for whom a rule-of-law commitment is a large part of his public persona. He has already shown himself willing to make public statements critical of the president, even while the president could still rescind his nomination for the Supreme Court. And his record shows him to be more skeptical of executive-branch power than many sitting federal judges—certainly more so than Justice Scalia was.

To be sure, all prognostications about this case can only be tentative. Unless the Court agrees to hear an appeal of the Ninth Circuit’s ruling immediately, without waiting for further proceedings in the trial court, there will be several steps between the Ninth Circuit’s denial of the president’s request to dissolve a stay and Supreme Court review of the merits of the case. An ordinary case would take months or even years to get from where it is now to the highest court. This one will progress much faster. But even if the run-up is only a matter of a few weeks, the dizzying pace of news since January 20 suggests that the landscape might change between now and whenever the Supreme Court decides the case.

Finally, even if the court were to strike down the order, a deeper conflict would remain live. President Orangutan is at the least testing the waters for going to war with the courts, and in the end the judiciary may only be strong enough to hold the line if it has support from the public and from Congress. How the court handles this case will set an important early marker in that struggle. If the Supreme Court stands its ground, as the Ninth Circuit panel did, it may inspire others to support it. And if the Supreme Court goes the other way—if it gives broad deference to the president when he claims national-security reasons for his action, even when it seems clear that no serious national-security thinking was actually brought to bear—it may be hard to see the bottom.