For just a little more than five minutes this past Thursday, about two dozen of the key players who will shape the story of America in the coming months gathered together in an untelevised moment of tradition and pomp and circumstance.
The setting was the Supreme Court, the ceremony was the investiture of Neil M. Gorsuch as an associate justice of the high court, and — for six brief minutes — everything took on a veneer of normalcy.
To the justices’ left there was President Trump, joined by his wife Melania. Deputy Attorney General Rod Rosenstein was there too, at counsel’s table in front of the justices and presenting Gorsuch’s formal commission to the court. Seated with Rosenstein was Acting Solicitor General Jeff Wall. Behind the seated press to the justices’ right was White House press secretary Sean Spicer, overlooking the outcome of the Trump administration's biggest success to date. Retired justice John Paul Stevens sat next to Melania Trump, several Republican former attorneys general and a number of senators sat in the front rows of the courtroom, and other invited guests filled out the rest of the audience — including, in one of the back rows, a key Trump administration adviser on judicial nominations, Federalist Society Vice President Leonard Leo.
Rosenstein presented Gorsuch’s formal commission to the court, and the newest justice, sitting in a very old chair — the tradition since the 1950s is for the newest justice to sit in former chief justice John Marshall’s early 1800s seat while the commission is presented — was ceremonially welcomed to the court.
And yet the presentment of the day as one of those ordinary (if rare) “Official DC” happenings felt a bit surreal.
Within an hour of the special sitting — while Gorsuch posed for photos with Chief Justice John Roberts on the steps of the court’s marble plaza — Wall would be submitting a brief to the court in the Justice Department’s defense of Trump’s beleaguered travel and refugee ban.
And within 24 hours of Rosenstein’s presentation of Trump’s commission for Gorsuch to the justices, Trump appeared to subtweet Rosenstein — accusing the longtime prosecutor, whom he nominated to serve as the number two at the Justice Department, of being part of the “witch hunt” that the president is convinced is out to get him. The tweet also came in the wake of reports that Trump is considering firing Robert Mueller, the special counsel appointed by Rosenstein who is investigating the Trump campaign’s Russia ties and related matters.
It is in this unusual context that Wall and other lawyers are asking the Supreme Court to defer to Trump’s judgement that the travel ban is a necessary national security move — not an outgrowth of the anti-Muslim rhetoric Trump expressed during the campaign — and that the president has the authority to institute the ban under immigration laws.
With the six minutes of ceremonial investiture over, the president and his wife were immediately escorted out of the court, the Justice Department filed its latest brief in the travel ban cases, and attention turned back to the common question of the nascent Trump administration: Can the president do that?
While talk about the travel ban has taken a back seat to the drama surrounding the special counsel’s investigation, expect (at least some of) the focus to quickly return to it as early as this week, with the justices set to consider what to do with the cases at their private conference on Thursday.
The main two pieces of the March 6 executive order — banning travel from six Muslim-majority countries for 90 days and halting the US refugee program for 120 days — have never gone into effect because of injunctions issued by two different federal courts.
The Justice Department wants to be able to enforce the travel and refugee bans while the Supreme Court hears the department’s arguments against two appeals courts' decisions to uphold injunctions. The ban's challengers don’t think the Supreme Court needs to hear the cases at all, and that, if it does, it should keep the bans on hold while the appeal is heard.
A key part of the federal government’s argument is that Trump’s statements as a candidate should not figure into courts’ determination of whether the March 6 travel and refugee ban executive order was legal and constitutional.
“Taking that oath [of office as president] marks a profound transition from private life to the Nation’s highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the Nation that the Constitution reposes in the President,” Wall wrote on June 1.
Days later, however, Trump sent out a series of tweets that suggested the transition, for this president, had been less than “profound.” In what has been a recurring feature of many of Trump’s statements, he appeared to show a significant lack of understanding of the law, the executive branch, and his job.
In describing the executive order he signed on March 6, Trump wrote that “[t]he Justice Dept. should have stayed with the original Travel Ban” — the one he signed on Jan. 27 that was blocked from enforcement by several courts — rather than the “watered down, politically correct version they submitted to S.C.” Of course, it was Trump who signed the executive order. Trump added, for good measure, that the Justice Department should “seek [a] much tougher version” of the travel ban at the Supreme Court. Again, Trump could do that himself at a moment of his choosing (although a tougher ban would be certain to face immediate legal challenges).
In addition to presenting a poor understanding of government, the tweets undermined a key argument being advanced by Wall and other lawyers as to why the executive order is lawful.
After the US Court of Appeals for the 9th Circuit refused to stay a lower court’s injunction of the first executive order, Trump relented and signed the second order — a slightly streamlined version that eliminated many of those parts of the first order that had led to the most significant criticism from the courts. The Justice Department told the Supreme Court that these changes to the order — eliminating a religious-minority preference in the refugee program, and narrowing the travel ban to six countries from seven while providing additional details by way of justification — represented a show of “good faith” by the administration.
Trump’s repeated focus in speeches and tweets that the second version of the executive order is “watered down” and “politically correct,” however, suggests otherwise, lawyers challenging the ban argue.
“The contention that the revision of the Order demonstrates ‘good faith’ on the President’s part is also belied by the record, especially the President’s own statements,” the ACLU and other lawyers, led by Omar Jadwat, wrote in their June 12 brief on behalf of the International Refugee Assistance Project and others. (They are arguing that the justices need not hear the appeal of the challenge brought in Maryland because the injunction issued in the case was appropriate.)
In the other travel ban injunction before the justices — from a case out of Hawaii — Wall argued that the injunction “improperly inserts the judiciary into sensitive matters of foreign affairs” in a way that could cause difficulties abroad.
“The district court’s pronouncement — that the President of the United States acted with animus toward one of the world’s dominant religions, notwithstanding his public statements to the contrary — plainly carries the potential to undermine the Executive’s ability to conduct foreign relations for the Nation,” Wall wrote, asking the justices to issue a stay of the district court’s injunction of the travel and refugee parts of the ban.
In their response, lawyers for Hawaii, led by Neal Katyal of the law firm Hogan Lovells, argue that “the Government’s assertion … would mean that even an Executive Order expressly banning all Muslims from the country, or banning all members of a particular race, would be entirely insulated from judicial review. That simply cannot be.”
On the surface, the lawyers are fighting out two main points — statutory debates over the Immigration and Nationality Act, which grants broad powers to the president but also includes a nondiscrimination provision, and constitutional debates over authority granted to the president, and civil rights and due process protections granted to individuals. (Expect to hear much more about all of this if the justices decide to hear arguments over the bans.)
In a sense, however, the bottom line for the challengers comes down to the argument that Trump's statements, both while running for president and in office, are outliers.
“The government calls the court of appeals’ holding ‘remarkable,’” the lawyers for IRAP wrote. “But it is the facts of this case that are remarkable. Although ‘[o]utright admissions of impermissible . . . motivation are infrequent,’ in this case there is an extraordinary volume of publicly available, undisputed evidence that the Order was intended to disfavor Muslims.”
The Justice Department, citing opinions from dissenting judges in the 4th Circuit and 9th Circuit cases, warned that “[a]llowing consideration of campaign statements also ‘has no rational limit,’ raising questions about whether courts may consider ‘statements from a previous campaign, or from a previous business conference, or from college.’”
Responding specifically to those warnings — “unsubstantiated speculation,” the IRAP lawyers call it — they write that “the government’s specter of 'chill[ing] campaign speech' is a red herring.” There have been enough post-election statements alone to merit striking down the executive order, they claim. They add, to the point at question, that “the relevant campaign promises” at issue “were specific, repeated, never repudiated, confirmed post-election, immediately enacted, and amply corroborated in the Order’s text, operation, and contemporaneous statements.”
Hinting at the challengers’ moral argument against the executive order, the IRAP lawyers wrote: “Far more troubling consequences flow from the government’s request for absolute deference. Such a holding would, as Justice Jackson warned in Korematsu v. United States, ‘lie about like a loaded weapon.’”
Korematsu, of course, was the heavily criticized Supreme Court ruling that upheld the constitutionality of Japanese internment camps during World War II. The notion that a ruling in favor of Trump’s executive order would amount to an endorsement of the Korematsu finding has been a specter in the background of the cases challenging Trump’s ban — occasionally appearing in briefings and even judges’ opinions about the ban.
Wall, however, has continued pressing ahead with the presidential authority argument detailed in the brief he filed the day of Gorsuch’s investiture.
“[T]he injunction here nullifies multiple provisions of an Executive Order issued by the President pursuant to his inherent and express statutory authority to safeguard national security,” Wall wrote of the 9th Circuit’s decision to uphold, but narrow, the district court’s injunction in Hawaii’s challenge to the ban. Specifically, that injunction now bars enforcement of the 90-day travel ban, the 120-day refugee ban, and the executive order’s restriction of the number of refugees permitted to enter the US this fiscal year.
The legal challenge to the travel ban, however, may have become moot, while the challenge to the refugee ban could also be moot within a month. The travel ban, lawyers for IRAP wrote, “will expire on June 14, 2017. At that point, the injunction will be moot.” This is so, the lawyers wrote, as the executive order specifically stated that the 90-day ban was to take place “from the effective date of this order” — stated elsewhere as March 16, 2017. In other words, the travel ban ended on June 14 — even though it has been enjoined the whole time. The refugee ban was scheduled to end on July 14.
This argument, however, appears to have been short-lived. Trump issued a presidential memorandum on June 14 declaring, “in the interest of clarity,” that the effective dates of the travel ban and refugee ban are “the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.” Trump added, lest there be any remaining doubt, that “to the extent it is necessary, this memorandum should be construed to amend the Executive Order.”
In other words, per Trump's latest memorandum, the travel and refugee bans have yet to even begin.
This Thursday, the justices — including, absent an unexpected recusal, the newest justice to be ceremonially welcomed to the court — are expected to consider what happens next.