ORAL arguments at the Supreme Court often make for excellent theatre: an hour of well-prepared lawyers clashing over an issue fundamental to American democracy, lashed by questions from merciless justices sitting a few feet away. That is what visitors to the Supreme Court are likely to see on April 25th, when the court convenes to hear Trump v Hawaii, the final case of the nine-month term. The justices will consider an uncommonly fraught matter of presidential power: whether the third version of Donald Trump’s restrictions on travel from primarily Muslim countries is consistent with the law and the constitution.
The challengers argue that Mr Trump’s latest travel ban is a direct descendant of his campaign-trail calls for a “total and complete shutdown” of Muslims entering America “until our country’s representatives can figure out what is going on”. Singling out members of one religion for especially burdensome treatment based on a hunch that they may be terrorists violates the First Amendment’s Establishment Clause, the Fourth Circuit Court of Appeals in Maryland held, while the Ninth Circuit Court of Appeals in California said the policy exceeds the president’s authority under a congressional statute: the Immigration and Naturalisation Act.
A willing suspension of disbelief is key to properly experiencing any piece of theatre, and—if Mr Trump is to prevail—the same could go for this week’s hearing. Noel Francisco, the solicitor general, will ask the justices to forget everything they think about Mr Trump’s motive for issuing three successive executive orders barring travellers from countries that are overwhelmingly Muslim. The third version is certainly the most refined—it adds Venezuela and North Korea, countries that have few or no Muslims, to the banned list. But to think that Mr Trump no longer intends the travel ban as a partial realisation of his long-promised Muslim ban is to take an exceedingly charitable view of his motives and to ignore his tweets disparaging Muslims.
Courts have no business reviewing a president’s immigration decisions regarding people not “physically present in the United States”, Mr Francisco argues in his final brief to the justices. The ban’s challengers “offer no valid reason to impugn” the executive branch’s “country-specific findings” or to veer away from the so-called “presumption of regularity” and “good faith” of cabinet officials who helped Mr Trump craft the policy.
But an amicus brief written by Robert Loeb and signed by ten former executive branch officials looks to the origins of the “presumption of regularity”, contending that it has never stopped a court from examining “evidence showing that government officials have acted with an improper purpose”. Instead, the idea merely served as a pragmatic cover for presumed facts that were not entirely certain: “if a copy of a document with a corporate seal was filed, a court would presume it was an official corporate seal issued by an authorised party unless someone submitted evidence to the contrary”. But in Trump v Hawaii, Mr Loeb writes, the president’s defenders “seek to inflate this modest presumption into a high barrier thwarting meaningful judicial review”. That refashioning of an old principle “should be squarely rejected”, he writes.
If the justices accept Mr Trump’s assertion that they should simply presume his exercise of presidential power to be lawful and responsible, the former government officials warn, the courts will grant chief executives a dangerously broad discretion. The justices may “begin from the premise that government agents have acted properly”, but they do not and should not hesitate to peer “behind the presumption to the actual facts”. Otherwise, a “Jim Crow law designed specifically to disenfranchise black voters” would go unprobed as long as it didn’t mention African Americans by name. Overweening deference to executive power, in short, is not the way of the constitution.
It is telling that the briefs supporting Mr Trump’s immigration decisions expend more energy imploring the justices to look away rather than to carefully examine the justifications and motives behind the travel restrictions. Yes, Mr Trump may have retweeted anti-Muslim propaganda videos from a British hate group in November 2017, but “the President’s retweets do not address the meaning” of the travel ban “at all”. Nor, apparently, does his tweet from June 5th that his “Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version” that became the second version. And there is no reason to consider an August 17th tweet trumpeting a long-discredited story about General John Pershing, in which Mr Trump suggested that stamping out “Radical Islamic Terror” would be a cinch if America would only kill Muslim terrorists with bullets that had been dipped in pig’s blood.
In an attempt to counter the unfortunate record their client has produced, Mr Trump’s lawyers include a footnote pointing to several nice things the president has said about Muslims. In a May 2017 speech in Saudi Arabia, for example, he “praised Islam as ‘one of the world’s great faiths’ and emphasised that the fight against terrorism ‘is not a battle between different faiths, different sects, or different civilisations’ ”. And, the brief observes, he repeated this sentiment in a Ramadan message later that month.
White House statements and speeches to foreign governments, of course, are scripted, edited and filtered; Mr Trump’s tweets emphatically are not. But even the Ramadan greeting referred to “barbaric terrorist attacks” in Britain and Egypt and the “perverted ideology” that fuelled them. While Mr Trump noted that these terrorist incidents were “directly contrary to the spirit of Ramadan”, the subtext was not difficult to discern. Mr Trump has conveyed the message that Muslims are dangerous and his travel restrictions are a tool to keep millions of them far from America. His lawyers know that; the justices know that. The question is whether a majority of the justices will bury their heads in the sand and give their blessing to a policy with little—other than religious bigotry—to recommend it. They will rule by the end of June.