NICK EICHER, HOST: It’s Monday morning, start of a new work week and the end of the month.
It’s April 30th, 2018.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
It’s time now for the Legal Docket on The World and Everything in It.
Well, here’s where we stand on the Supreme Court calendar: Last Wednesday, the justices heard the last of the 63 oral arguments for the term, and today I’ll bring you one argument I’ve not covered yet.
I’ve got nine more to analyze and I’ll get through those as time permits. Eventually, we’ll get through them all.
But between now and the end of the term in June, Legal Docket will consist of the remainder of arguments and the big rulings that come down. The high court has handed down 23 decisions, but 40 remain. So it’s going to be a busy time.
EICHER: Let’s begin with decisions from last week.
The Supreme Court decided a case brought under a law signed by President George Washington. It’s the 1789 Alien Tort Statute. And the question was whether it applied to foreign corporations.
Victims of terror attacks in Israel sued Arab Bank. It’s a Jordan-based bank with a branch office in New York City. The victims alleged Arab Bank permitted the transfer of funds to terrorist groups in the Middle East.
The Supreme Court ruled 5-4 that the victims could not sue foreign corporations under U.S. law. It was a fractious ruling, with no majority agreeing on all the reasoning involved. It’s going to be difficult to apply to future cases. It’s basically split between liberal and conservative justices.
The two other rulings dealt with patent law. And they clarified highly technical aspects about how the patent office will review patents and challenges to them.
REICHARD: Well, now on to the big, controversial case of last week: the argument over President Trump’s travel restrictions.
Various iterations of the president’s so-called travel ban have met lawsuits, injunctions, and political attacks since Trump’s first week in office.
The president said the temporary restrictions were designed to buy time. That’s so his new administration could investigate how terror-prone countries vet their citizens before allowing them to travel to this country.
EICHER: The third iteration of the travel restrictions is what is before the court now. In that version, citizens of certain countries with sparse vetting procedures are prohibited from immigrating to the United States. Many of them may not work, study, or vacation here until further notice. Those countries are Libya, Iran, Somalia, Syria, Yemen, and North Korea. The rules also bar specific officials from Venezuela.
The administration recently removed from the list the African nation of Chad, with a majority-Muslim population. The White House said it was satisfied with Chad’s vetting process.
REICHARD: At the Supreme Court last week, Solicitor General Noel Francisco argued that the travel restrictions are entirely proper. Francisco made the point that President Trump did not act alone to issue the restrictions:
FRANCISCO: After a worldwide multi-agency review, the President’s acting Homeland Security secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals.
The state of Hawaii and the Muslim Association of Hawaii are among the challengers to these latest travel restrictions. Neil Katyal represented them. He’s the former acting solicitor general under President Obama.
KATYAL: If you accept this order, you’re giving the president a power no President in 100 years has exercised, an executive proclamation that countermands Congress’s policy judgments…
But as was brought out during arguments, previous presidents also invoked travel bans: Jimmy Carter restricted travel from Iran during 1980’s hostage crisis. Ronald Reagan did so in 1985 for travelers from Cuba.
Katyal distinguished those situations as an immediate crisis, not a slow-brewing one like today’s situation.
The larger dispute in this case is really the scope of presidential power. As the chief executive, President Trump is privy to information about our nation’s security that officials in the other branches do not have. That’s why the Constitution grants broad latitude over matters of national security to the president.
But Katyal didn’t focus so much on the Constitution. He homed in on the Immigration and Nationality Act. That law allows the president to suspend entry of—quote—“any aliens, or any class of aliens”—end quote—that he finds might be a threat to the United States.
Katyal argued the president cannot exclude whole groups of people without a sunset clause, or a time limitation. The word “suspend” implies “for a time.”
Justice Anthony Kennedy seemed unconvinced. He noted the security rationale was quite detailed, and added this:
KENNEDY: The statute says…“for such period as he deems necessary,” and he can have continuing supervision over whether its still necessary. …
KATYAL: This is about a perpetual problem…
KENNEDY: So you want the president to say, ‘I’m convinced that, in six months, we’re going to have a safe world?’
Francisco — for the president — took heat from the liberal-leaning justices.
Justice Kagan posed a thinly veiled hypothetical about a president who makes anti-Semitic comments during a campaign. If after taking office that president takes anti-Israel actions, wouldn’t you connect those dots to show unacceptable hatred toward Jews?
Francisco had an answer for Justice Kagan, who had an answer for the solicitor general. Listen:
FRANCISCO: 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, 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…
KAGAN: And who knows what his heart of hearts is? I mean, I take that point. But the question is not really what his heart of hearts is. The question is what are reasonable observers to think in this context…
Justice Kagan picked up on the challengers’ take: that candidate Trump’s tweets and statements before he became president show animus towards Muslims.
Therefore, it’s disingenuous to now dress up the reason for the restriction as a legitimate security concern.
Francisco countered that directly:
FRANCISCO: Well, the president has made crystal clear on September 25th that he had no intention of imposing the Muslim ban. He has made crystal clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country… This proclamation is about what it says it’s about: foreign policy and national security.
Oddly, had President Trump only issued the final travel restriction, both sides say that would be fine. But the challengers say if you throw in the other things Trump said before the election, that changes everything.
Francisco drew a bright line and countered with this:
FRANCISCO: Campaign statements are made by a private citizen before he takes the oath of office and before, under the Opinions Clause of the Constitution, receives the advice of his cabinet, and that those are constitutionally significant acts that mark the fundamental transformation from being a private citizen to the embodiment of the executive branch. So that those statements should be out of bounds.
Later, Justice Samuel Alito picked up on the reasonable-observer standard in this exchange with Katyal.
ALITO: I think there are 50 predominantly Muslim countries in the world…five predominantly Muslim countries are on this list. The population..of the predominantly Muslim countries on this list make up about 8 percent of the world’s Muslim population. If you looked at the 10 countries with the most Muslims, exactly one- Iran, would be on that list of the top 10. So would a reasonable observer think this was a Muslim ban?
KATYAL: If it were just the text of the order alone, it might raise eyebrows, for fit and other reasons that the briefs go into, but we wouldn’t be here.
Francisco amplified Justice Alito’s geographic and demographic observations.
FRANCISCO: This is not a so-called Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.
Katyal underscored that Congress provided the fix to the problem, and just because the president wasn’t happy with it doesn’t mean he can go his own way. Then Chief Justice John Roberts ribbed Congress with this crack:
KATYAL: so we’re so far from that hypothetical we’ll concede.
ROBERTS: Well… Imagine, if you can, that Congress is unable to act when the president asked for legislation. (laughter) and someone introduces a bill that says let’s authorize — first of all, the president may have qualms about sharing that absolute intelligence broadly …
Katyal reiterated his fundamental argument, with a surprise ending to a very serious case:
KATYAL: Our fundamental point though is that Congress IS in the driver’s seat when it comes to immigration and that this executive order transgresses what every president has done with this proclamation power since 1918 and to accept it here is to accept the president can take an iron wrecking ball to the statute and pick and choose things that he doesn’t want for purposes of our immigration code. That can’t be the law of the United States.
ROBERTS: Uh, take five extra minutes. (Laughter)
KATYAL: Uh, OK! (Laughter)
ROBERTS: You don’t have to!
You can hear the tenor of the questions and what sounds like a likely win for the president. A majority of the justices let the travel restriction go into effect December 1 while the appeals proceeded. I think Justice Kennedy and Chief Justice Roberts are the most likely swing voters, and they showed concern here about setting a bad precedent by going against presidential powers. So I think the president will finally see a win here.
And that’s this week’s Legal Docket.