Justice Kagan Has a Plan to End Trumps Travel Ban

One thing became clear during Wednesday’s oral argument at the U.S. Supreme Court about President Donald Trump’s travel ban: Justice Elena Kagan has a strategy to persuade swing Justice Anthony Kennedy to vote against the ban. Her approach will be to depict the case as a watershed moment in the court’s jurisprudence about bias — thus making it extraordinarily difficult for Kennedy to find himself on the wrong side of history.

Legally speaking, the travel ban case has lots of moving parts: Do Muslims in the U.S. have a legal avenue to challenge a ban that excludes only non-Americans outside the country? How is power divided between the president and Congress with respect to immigration? Did the president offer sufficient reasons to justify the ban, which currently applies to five majority Muslim countries?

If the case is ultimately decided on the basis of any of these thorny questions, the ban is overwhelmingly likely to survive the court’s review. It’s not that the arguments for the order’s legality are so strong. Rather, focusing on any of these questions would allow the court’s majority to deflect attention from what has bothered all the lower courts that have struck down the ban: Its manifestation of pure anti-Muslim sentiment.

The only way the ban will be struck down is if five justices — including Kennedy — focus on Trump’s openly Islamophobic statements during the campaign... Kagan knows this, as her rather brilliant comments during the oral argument made clear. It’s rare that a single justice can really take conceptual control of an oral argument, but Kagan came close.

She introduced a hypothetical about an anti-Semitic president with a travel ban of his own, a scenario that drew on an argument the government had introduced its briefs:

"So let's say in some future time a president gets elected 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 and, in the course of that, asks his staff or his cabinet members to issue … recommendations so that he can issue a proclamation of this kind, and they dot all the i's and they cross all the t's. And what emerges — and, again, in the context of this virulent anti-Semitism — what emerges is a proclamation that says no one shall enter from Israel."

(snip)

The solicitor general took the bait. “If his cabinet were to actually come to him and say, ‘Mr. President, there is honestly a national security risk here and you have to act,’” Francisco answered, “I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”

(snip)

In other words, Francisco’s answer highlighted that the case for keeping the ban in place depends on the idea that there really is a pressing national security threat. If there isn’t, then Trump is just like the president in the hypothetical: a demagogue enacting an executive order based on prejudice.

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https://www.bloomberg.com/view/articles/2018-04-25/justice-kagan-has-a-plan-to-end-trump-s-travel-ban