A Note On Kagan’s Use Of The Israel Hypothetical In Trump v Hawaii

4/26/18

Someone on FB complained for a variety of reasons about Kagan’s Israel hypothetical—what if a notorious anti Semite were president and then ordered restrictions on anyone who wanted to travel to the U.S. from Israel.

I didn’t find the hypo troubling as a legal or non legal matter.

Here’s what I wrote on that complaint’s thread:

.... Isn’t the point of Kagan’s hypo an attempt to establish that there could be conceivable circumstances when a court could review the bona fides of a travel/immigration related executive order, so to say, go behind it facially, that, say, as per the hypo, if a notorious bigot were in office and who ordered travel restrictions aligned with his bigotry, then it would be appropriate for a court to review and pass on the order from the standpoints of what the statute allows for and of what the Constitution demands? 

So the hypo wasn’t qua Israel as such. Israel in it simply served as a means to make the point of where the court’s reviewing prerogatives can arise from. 

After all, at least as I heard Katyal’s argument, the heart of it, or at least a couple of ventricles of it, turned on, or, not to mix metaphors, got pumped by, Trump’s various anti Muslim campaign statements and then after he took office a few of his alleged anti Muslim tweets. 

Katyal told Roberts that if Trump explicitly took back all that he’d said about Muslims, then he could reissue the executive order free of Katyal’s legal challenge. 

Mind you, I think the argument that flows from the hypo is a really steep uphill climb on the  facts of this case for many of the reasons you point out. 

But I don’t take the hypo as invidious or insidious. It was just one of those imagined examples that come up in oral argument by which judges try to establish and flesh out the starting points or bases for then further analysis, here going to show, as I note, that there can be certain conceivable circumstances whereunder it would be appropriate for the court to review the bona fides of the executive order by both the statutory and constitutional standards....