Executive Discretion the Travel Ban Case
Michael Ramsey
At Dorf on Law, Michael Dorf sums up the argument on the travel ban case (argued at the Supreme Court on Wednesday):
Travel Ban 3.0 poses a non-trivial constitutional question because: (1) It is clear to any reasonable observer that Trump's anti-Muslim animus was a but-for cause of each version of the Travel Ban; and (2) the Ban has a clear disparate impact on Muslims; but (3) to produce Travel Ban 3.0, the government--including many people who probably do not harbor anti-Muslim bias--did some homework so that it could have a national security justification. If this were a case arising in any other context, the clear import of (1) and (2) would be that the courts would strictly scrutinize the government's justification in (3). The hard question is how to blend the strict judicial scrutiny that ordinarily applies to religious discrimination with the deferential scrutiny that courts apply to assertions of a national security interest by the executive branch.
I think, though, that his point (1) overstates, and so his framing of the question fails. Consider the following hypothetical conversation:
PRESIDENT: I want to prevent radical Islamic terrorism in the United States. Let's just ban all Muslim travel to the US. That should do it.
ADVISER: Well, OK, boss, but have you considered that most Muslims are not terrorists and in fact probably hate terrorism as much or more than we do?
PRESIDENT: Good point. Let's just ban travel from countries where there are lots of terrorists. How about this? [Hands adviser a list of countries written on a napkin].
ADVISER: Sure, but I see Iraq is on your list, and while there are some bad guys there, the government is friendly to us and lots of Iraqis have helped us in the past so it seems a little unfair.
PRESIDENT: Fine, take Iraq off the list.
ADVISER: Might I suggest, sir, that this list is a little, shall we say, ad hoc? Perhaps you could ask the DHS to investigate which countries really pose the biggest threat. Then the list would have some basis in, um, reality.
PRESIDENT: You take all the fun out of this job. But OK, let's do that.
I can't say that this approximates what actually happened in the evolution of the actual travel ban. And I wouldn't say it's a good way to make national security policy. But I do think it's plausible account (especially to anyone who's worked with a somewhat impulsive and temperamental boss). And if so, I don't think we can say that "[i]t is clear to any reasonable observer that Trump's anti-Muslim animus was a but-for cause of each version of the Travel Ban." Rather, a reasonable observer might conclude that the President's desire to prevent Islamic terrorism was the but-for cause, that initially his proposed solution was wildly overinclusive, and that he was gradually persuaded to adopt a more modest position.
Of course, it's also possible that the President/adviser dialogue had a more sinister tone, with the President insisting that we must keep out as many Muslims as possible and the adviser trying to craft a pretext. But choosing among these accounts involves a high degree of speculation.
What does this have to do with originalism? I think it is a basic proposition of the original separation of powers, reflected in Marbury v. Madison, that the judiciary does not supervise the exercise of the President's discretion (generally, but especially in national security matters). To be clear, the judiciary can and should intervene if the President's actions exceed the limits of the Constitution. (Regular readers know I don't think much of expansive versions of the political question doctrine.) But if the judicial inquiry reduces to speculation about the President's motivations rather than measuring the President's actions against the Constitution's requirements, I think we would have inappropriate judicial supervision of executive discretion. Since the travel ban is neutral on its face (as to religion) and plausibly neutral in origins, I don't see an originalist judicial license to go further.
Professor Dorf invokes the Korematsu decision, but Korematsu is entirely different. Korematsu was wrong on originalist grounds because on its face it does not comport with due process of law to deprive a whole class of U.S. citizens of their property, force them out of their homes and send them to prison camps in the desert just because there was some speculation that some of them might possibly have been spies or saboteurs. That conclusion doesn't turn on speculation regarding the President's motives. The President might have had the purest motives in Korematsu; the decision would remain abominably wrong in assessing his actions. In contrast, assuming the travel ban would otherwise be constitutional, the challengers seek to turn a constitutional policy into an unconstitutional one based only on speculation about presidential motivation.
UPDATE: A more precedent-riven analysis from Josh Blackman: The Easy Way Forward on Trump v. Hawaii. On the executive power issue:
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 [Kleindienst v.] 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.