A Tale of Two Branches at Today’s Oral Arguments in the Travel Ban 3.0 Case

Sitting in a packed courtroom for today’s Supreme Court argument in Trump v. Hawaii, I was reminded of watching a movie in which the plots for two main characters develop separately, requiring the movie to cut from a scene featuring one to a scene showcasing the other.

One character here was Congress.  As expected, the Justices asked both sides tough questions about how Congress has fulfilled its constitutional authority to set immigration policy and exactly what leeway Congress has given a president in implementing that policy.  Congress is, in a sense, the star of this show: it’s the one charged by Article I of the Constitution with “establish[ing] an uniform Rule of Naturalization,” and it’s the one that’s deliberately crafted a complex statutory scheme to do so.

But there is, of course, a co-star here: the president.  After all, it’s the president whose unilateral Proclamation is at issue in this case, and the president whose lawyers have attempted to justify it based on a shifting rationale that initially focused on keeping purportedly threatening individuals out of this country before morphing into an alleged need to incentivize better information sharing from certain foreign nations.

And so the argument today swung from scenes about Congress and its debates over immigration policy—including its repeated decision not to return to the nationality-based approach to exclusion that Congress repealed in 1965—to scenes about the president, including ones exploring what a president can do under governing law and, more specifically, what President Trump has done with his travel ban.

As with any such narrative, resolution must occur when the two characters finally meet in a denouement.  And the Court never really reached that moment in today’s questioning.  It’s instead the question to be resolved in the opinion—or, more likely, opinions—that the Justices will begin drafting next week.

As I’ve argued elsewhere, there are so many angles that the Justices might take on this case that it’s hard to know what approach will interest which Justice—especially when an hour or so of oral argument didn’t leave anything close to enough time to hear from all of them on all of the issues.  Consequently, speculating as to how the Court will rule, particularly in a case as complex and multifaceted as this one, may make for a great parlor game, but its utility stops there.  As with any good drama, I’d encourage viewers: keep watching.

Photo by Mark Wilson/Getty Images 

About the Author(s)

Joshua Geltzer

Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Member of the editorial board of Just Security.