The Supreme Court will hear oral arguments in Trump vs. Hawaii, the Trump "Muslim" travel ban 3.0 case today. If it were to rule solely on
the basis of whether the ban is good policy, it would be an easy call: "Nyet." Indeed, not even the uber-hawkish Wall Street Journal editorial page believes that the ban will do zilch to keep America safe from terrorist attacks. "We've disagreed with the need for the sweeping travel restrictions," the Journal's august editors opined. "The post 9/11 screening process for the most part has been effective in keeping out foreigners with jihadist links and sympathies. Most immigrants who have committed terrorist acts in the U.S. were radicalized after admission."
That is completely true. As I've noted in the past, immigrants from the seven banned countries have killed precisely zero Americans in terrorist attacks on U.S. soil between 1975 and 2015. And countries that have sent terrorists—most notably Saudi Arabia, the home of many 9/11 hijackers—aren't on the list.
But the Supreme Court will consider not whether the ban is sound policy but whether it is legally valid and constitutionally permissible. There is a pretty good chance that it will find that it is given that it overturned a lower court injunction preventing the ban from going into effect by a 7-2 vote pending a final ruling. As South College of Texas Law Professor Josh Blackman has pointed out, in the Roberts court, only once in the more-than-a-decade have the justices granted a stay without later reversing the opinion of the lower court.
Still, there are really strong arguments for nixing the ban, especially if the court were inclined to uphold individual liberty while strictly limiting state power—in other words, engaging in the kind of principled judicial activism that my Reason colleague Damon Root has advocated rather than slavishly deferring to the will of the elected branches.
The main argument why the Supreme Court cannot nullify the ban is that it's not its place to do so. Keeping the country safe is constitutionally an executive function and therefore actions taken by the president in the name of national security are not subject to judicial review. Furthermore, the thinking goes, he has "plenary power" to keep out foreigners—even entire classes of them—who he thinks might pose a threat to the country.
But, as I have noted before, the problem is that the plenary power doctrine as it applies to immigration has its basis not in the Constitution but very flawed 19th Century case law. The underlying rationale for this doctrine is that, in order to protect itself, the government of a sovereign nation like America must be able to exclude any foreigner from its soil without constitutional objections from courts. The only "rights" foreigners are entitled to when it comes to their ability to enter or stay in the country are those that the elected branches decide to extend to them. So, actions that might be illicit when applied to citizens may be unobjectionable when it comes to foreigners.
But there are several problems with this argument.
For starters, few outside ultra-restrictionist circles would grant that the government has carte blanche to restrict any foreigner without a really good reason. At the very least, it matters what kind of a connection the foreigner in question has with the United States. So, for example, it cannot stop legal permanent residents or green card holders from re-entering the country except in some very limited circumstances like if they have been involved in terrorist activity while away. That's why the original Trump order, which stopped even green card holders from Muslim countries, would never have been able to withstand judicial scrutiny and had to be scrapped.
Why is that? Namely, because foreigners can only get a green card when an American—a family member or an employer—"sponsors" them. Barring a green card holder from coming to America without any due process, then, violates not so much the foreigner's right, but the right of American citizens.
The Supreme Court recognized as much in the 2015 Kerry v. Din. Although the case upheld the rejection of the green card petition of an American citizen, Fauzia Din, for her Afghani husband, the court did not find that Din had no protected liberty interest at stake because her husband was a foreigner. Rather, as Justice Anthony Kennedy explained in his concurrence that whatever that interest, it was overridden by the finding that her husband had once belonged to a terrorist outfit. In other words, the government hadn't barred her husband as part of a blanket ban but had offered an individualized finding as to why he needed to be kept out.
That's a far cry from Trump's travel ban. But the real question is whether Trump can ban foreigners whose ties to the United States are either tenuous or non-existent. So, for instance, can Uncle Sam bar refugees who wish to come to America on immigrant visas but don't have American sponsors—or foreign tourists, businessmen, guest workers and others who wish to visit America on temporary, non-immigrant visas?
A carefully argued amicus brief that Ilya Somin, my Volokh Conspiracy colleague, submitted to the Supreme Court notes that these foreigners can be denied only in a manner consistent with the Constitution. Somin argues that the purpose of the Bill of Rights is not merely to protect the rights of Americans but also impose structural constraints on the power of the federal government. He notes:
The Bill of Rights was added to the Constitution, not just to protect individual rights, but also to impose structural constraints on the federal government. These constraints sharply curb the powers granted in the unamended Constitution…. Thus, Petitioners' claim of nearly unlimited authority over immigration that is immune from judicial review has it backwards. No federal power can override the Bill of Rights. To the contrary, the Bill of Rights limits federal power in every sphere, including immigration.
Indeed, to give the government unlimited powers in one sphere and limit them in others would be schizophrenic and the early Republic understood that perfectly. That's why Congress at that time consistently concluded that pirates that attacked American ships in international waters and foreigners engaging in slave trade and smuggling deserved Due Process protections.
If that's the case then the question is if Trump's ban is still valid even if it violates the First Amendment's Establishment Clause by discriminating against foreigners from Muslim countries? If the administration were certain that the plenary power doctrine means that it is, it would not have added non-Muslim countries such as North Korea (that sends America all of about 100 visitors every year) and Venezuela (that is far from a terrorist hub) to its list of banned countries. The very fact that it did suggests that it has some doubts, as it should. Indeed, the federal government also has plenary powers to control interstate commerce. But that does not mean it can selectively ban blacks or Chrisitan conservatives from trading acrsoss state boundaries.
The administration is pretending that it included these non-Muslim countries not to cover over its real intentions but because they did not have adequate screening processes and information-sharing procedures in place. That, frankly, strains credulity— which does not mean the Supremes won't look the other way simply because they don't want to get involved in second-guessing the executive on national security matters. One thing to watch today to assess whether they intend to do so might be how much weight they attach to Trump's numerous campaign statements that he intends to enact a "Muslim ban."
It would be great if the court engages in principled judicial activism and refuses to defer to Trump and swallow his bogus rationale for the ban because his plenary power to set immigration policy means he can ignore the Constitution. If it overturns the ban, it won't mean that the government could no longer control America's borders and it must admit everyone who washes to its shore. It will only mean that it has to do so in a manner consistent with the Constitution. It can't check the Bill of Rights at the border because rights aren't divisible.
That is an outcome that all libertarians at least, regardless of their views on immigration, ought to hope for.