Illustration: Rebecca Zisser/Axios
The Supreme Court has mostly been able to stay insulated from Trumpworld — it hasn’t had to grapple with the impulses and contradictions that tie the rest of official Washington in knots. But that will likely have to change today as the court takes up President Trump’s travel ban.
Between the lines: It’s no big surprise to see a president’s signature policies land at the Supreme Court, but the travel-ban case is uniquely tied up with Trump’s haphazard policymaking process, and with the tug of war between the president and his administration. The justices will even have to decide how much they care about Trump’s tweets.
The big question: Is the travel ban a Muslim ban?
- If the court believes it is, then Trump would almost certainly lose. And on that question, the president’s own statements are his biggest liability.
- Trump campaigned on “a total and complete shutdown of Muslims entering the United States,” the travel ban was one of the first things he did after taking office, and he complained on Twitter that subsequent revisions were a “watered down, politically correct version” of the original.
The other side: The Justice Department wants to fight this out along relatively traditional battle lines, framing it as a straightforward case about the powers Congress granted to the president to restrict immigration.
The President’s retweets do not address the meaning of the [travel ban] at all.— Solicitor General Noel Francisco, in a Supreme Court brief
The facts: The initial travel ban, released just days after Trump’s inauguration, imposed a 90-day ban on immigration from seven Muslin-majority countries and temporarily barred all refugees from entering the U.S., unless they were religious minorities in their home countries.
- The White House revised the policy twice, in response to courts blocking the policy from taking effect.
- The most recent version barred immigrants from six Muslim-majority countries as well as North Korea; added some limits on travel from Venezuala; and, perhaps most importantly, spelled out criteria for including each country in the ban.
What to watch: Questions of statutory interpretation — how much power Congress gave the president through the Immigration and Nationality Act, and whether Trump acted within that authority when he signed the third and most recent version of the travel ban — probably will make up the bulk of today’s arguments.
- Many legal experts say the Justice Department has a pretty good shot at winning on those grounds, due in part to the court’s traditional deference to the executive branch.
Trump is the subtext. Hawaii wants the court to see a broader continuum that begins with Trump's expressed desire for a Muslim ban and accounts for the chaos of the initial policy. Trump's heaviest baggage is all stuff he created for himself.
- The court may well choose to ignore that baggage, focusing on the substance of Travel Ban 3.o — similar to the way House Speaker Paul Ryan sidesteps the "tweet of the day" to talk about the tax law. Trying to square that circle is a challenge for just about everyone in Trump's Washington. And now the Supreme Court has to figure it out, too.