I have a column in The Hill today on the decision of the Supreme Court in favor of the Trump Administration on the travel ban. After the first travel ban decision, I predicted that (while lower courts might disagree) the Supreme Court would reverse on the heavy reliance on President Donald Trump’s campaign statements and tweets. For prior columns, click here and here and here and here and here and here and here and here. Nevertheless, critics have cried foul at the 5-4 decision, including Sen. Mazie Hirono, D-Hawaii, has said that this creates a dangerous imbalance in the separation of powers. I believe the opposite is true.
The Court also rejected the repeatedly stated argument that immigration law prevents a ban from an entire country — a position that I also previously found flawed.
That statutory argument and the reliance on the President’s public comments were the same issues from the first travel ban decision. In that sense, it is not true that the threshold issues have changed dramatically from the first round. Indeed, the challengers repeatedly stated that the core issues of statutory and constitutional authority had not changed.
Hirono stated on NBC News:
“Who is going to be next? Is the president going to issue an executive order against Mexicans? Is he going to issue executive orders against people coming from Honduras or Guatemala? What’s next?” Hirono told NBC News. She added that she wasn’t optimistic that Congress would provide a check against the Trump administration moving forward. In order for checks and balances to work, we need a Congress that will serve as a check. We certainly don’t have that now.”
I have to disagree with Hirono. The courts are often called “the least dangerous branch” because they are independent, apolitical, and tied to core legal procedures. The danger to the separation of powers arises when courts can go far outside of the traditional record and pick public comments to use as determinative elements in analysis. Trump had conflicting statements on the record, including denials that this policy was a Muslim ban. The question is not the travel ban but the judicial function.
The Court is holding lower courts more closely to the traditional record and this is a shot across the bow not to be carried away by the President’s often inflammatory and disconcerting language. The President’s tweets magnified the difficulty for the Justice Department in litigating this case. He became the chief witness against his own Administration.
In the end however the decision today reinforces rather than reduces the separation of powers in our system.