A Few Impressions Of Oral Argument In SCOTUS In The Travel Ban Case

Trump v Hawaii

4/26/18

Travel ban case:

I see that April 2018 is on its last legs. 

Old friend I soon will say goodbye to you.

But that’s not my point.

My point is that I listened to the oral argument in SCOTUS on the travel ban. I was able to follow the argument as aligned with the transcript. (See below link)

The whole exercise was compelling. 

Noel Francisco arguing for the government was strong and didn’t allow the justices to bully him, insisting politely on being able to finish his answers. The questioning by the liberal justices was probing but I thought his arguments were forceful and that “he gave as good as he took.”

But I wasn’t prepared for Hawaii’s lawyer Neal Katyal’s appellate brilliance and utter mastery of his brief. He speaks too quickly but he so has his arguments down cold and he made a much better showing of affirming the lower courts’ reasoning in their holding against the third version of the ban than I expected. 

No one could lay a glove on him and my impression is that the liberal justices gave Francisco a tougher time than were the conservative justices able to give Katyal, owing in part to how tight his position is and how absolute is his command of the arguments for it. One sign of that is that Roberts offered him an extra five minutes of argument if he wanted it. He didn’t.

The consensus seems to be that the govt had the ultimate best of it yesterday even while acknowledging Katyal’s superb appellate advocacy.

I agree with that and I think the govt will prevail 5-4. 

My sense is that:

the statute, 8 U.S.C. § 1182(f), will be read to give Trump the power to do what he did and that Katyal’s limiting reading of it such that it contains executive discretion won’t be accepted;

The executive order will not be seen as a “Muslim ban,” Trump’s campaign statements and later tweets as President notwithstanding; 

therefore, my sense is the constitutional claims, particularly the Establishment Clause argument, will fail;

the rationale for the ban will be accepted by a majority, namely a world-wide multi-agency review prompting Homeland Security advising Trump to restrict travel from those countries not providing baseline vetting information;

I don’t think Katyal surmounted the point of new contingencies arising beyond what Congress has set out for assessing travel entry, which then clears the way for the executive exercising its discretion as it sees fit in the circumstances; 

and that leads to a principal concern for a majority, namely, the court not wanting to put itself in the position of making foreign policy and security reviews and determinations about executive decisions on what’s needed for national security from the standpoint of foreign travel to the U.S. 

I report, opine and you decide.