Wednesday is the last argument day of this year’s Supreme Court term, and the Supreme Court is going out with a really big case — Trump vs. Hawaii on immigration ban, version 3.0. The significance and public interest in this case is revealed by the fact that the audio from the argument will be released later in the day. (Usually, on argument days, the Supreme Court only releases the transcript with the audios from all arguments in a week being released on Friday.)
From the first day in office, President Trump has been attempting to ban immigration from certain predominately Muslim countries. Version 1.0 was a rushed order that got into legal trouble quickly. Version 2.0 reflected the administration taking the time to actually think about the terms of the order. Version 2.0 expressly established a time frame for studying problems with the visa system and identifying which countries were problematic. Version 3.0 placed restrictions on immigration from six Muslim countries (Chad, Iran, Libya, Somalia, Syria, and Yemen) and two non-Muslim countries (North Korea and Venezuela). According to Version 3.0, these eight countries do not adequately assist the United States in terms of sharing information on the background of visa applicants.
There are two side issues in this case. The first issue is the question of whether the case is “justiciable.” In plain English, whether a court can review the President’s exercise of executive power related to immigration. Generally speaking, individual visa decisions are not reviewable, but this case involves a broader policy. The other side issue is the question of “global injunctions.” In plain English, typically, a judge can only issue an order that resolves the claims of the parties to the case. There is an exception for class actions in which one plaintiff is a representative of a larger group of plaintiffs, but, in a class action, all members of the class are parties to the case and have a right to have input on any settlement. Recently, there have been several cases — both under the Obama Administration and now under the Trump Administration — in which a judge has issued an injunction that covers the precludes the government from applying a new policy to anybody, not just the individual plaintiffs.
Assuming that the Supreme Court gets past the two side issues, the primary “merits” issue is statutory — what powers do the immigration statutes give to the President. In particular, the main statute at issue gives the President the power to deny visas to immigrants and classes of immigrants who are potentially dangerous. The ultimate issue in this case is whether residents of a particular country can qualify as a class, particularly in light of other immigrations statutes barring discrimination based upon nationality. Even if it does, a secondary issue would be whether the difficulty in verifying details about immigrants from certain countries permits the conclusion that those immigrants are a danger to the United States. Additionally, the Trump Administration has argued that the President also has some inherent authority in the immigration context beyond the powers delegated by Congress in the administration statutes.
The challengers also raise a constitutional issue. Assuming that the President can restrict the issuance of visas based on nationality, is the executive order a “Muslim Ban” that would violate the Establishment Clause of the First Amendment? While the Supreme Court added this issue at the request of the challengers, both the trial court and the Ninth Circuit declined to reach this issue having found that Version 3.0 was invalid under the statutory analysis. In prior versions of the travel ban cases, courts have considered the President’s public statements about putting in place a Muslim ban as proof that Version 3.0 was the product of religious animus and an intent to discriminate against Muslims. More likely than not, the Supreme Court will not reach this issue. Assuming that the Supreme Court reaches the merits, if the Supreme Court finds that the travel ban is authorized by statute or the President’s inherent authority, the Supreme Court will remand this issue back to the lower courts to make factual findings.
As with other appellate cases, it is rare for there to be an instant decision. Instead, an opinion will be released later this term. Given the fact that this case is the last to be argued, it is most likely that the opinion in the case will be issued in late June, just before the Supreme Court recesses for the summer. While it is still too early to predict with any degree of confidence the exact date that the Supreme Court will issue its last opinion, the current schedule has the Supreme Court recessing during the week of June 25 which is consistent with its usual practice (recessing before July 4). (The last four years, the Supreme Court has finished issuing opinions on that last Monday in June, but, in prior years, it has issued some opinions later in that last week of June.)
