WASHINGTON – The Supreme court may soon decide how judges are supposed to view presidential power in the age of Donald Trump.
The government has promised a high court of appeal from a judgment of the block of the president’s ban on visitors from six majority Muslim countries. The case could be a major test for the young administration and for a court that has its 5-4 conservative majority will be restored with the confirmation of Trump nominated Neil Gorsuch as the ninth justice.
At first, the judges must agree to intervene — something they probably would, considering the importance of the problem. If so, then they will have to deal with an area of the law, immigration, where the court, having regard to the presidents of a lot of play.
But the president’s power over immigration is not absolute, and several lower courts have prevented Trump from placing a temporary ban on travel to the U.S. by the people of Iran, Libya, Somalia, Sudan, Syria and Yemen.
The travel policy was first issued in the week after Trump came on Jan. 20, and then revised after the first adverse rulings of the court. The dispute is unusual because Trump himself has supplied much of the evidence that the opponents said showed that anti-Muslim prejudice lay behind the policy.
At issue in the case are decisions Trump made during the campaign, in interviews and in his actions as president.
“We have never really had, at least in the last decades, in a case like this, where it’s glaring evidence of pretextual discrimination by the president himself and also in the immigration sphere,” said Ilya Somin, a professor at the George Mason University Antonin Scalia’s Law School.
The 4th U.S. Circuit Court of Appeals ruled against the travel policy Thursday, saying that Trump’s comments helped show that the policy was “steeped in animus and focused on a single religious group.”
An important issue may be whether the statements of the candidate Trump has to bear weight. Three dissenting judges on the 4th Circuit said the statements should not be considered because the candidates say many things while campaigning, and it is not per se to be held.
Josh Blackman, a professor at the South Texas College of Law in Houston, said he thinks the Trumpet is a factor that was central to the 4th Circuit ruling would be less pronounced at the Supreme court.
The court may pay more attention to declarations of the Attorney-General Jeff Sessions and Homeland Security Secretary John Kelly in support of the policy. “The judges recognize their decisions will long survive Donald J. Trump. They will be a bit more careful to acknowledge that this is not just for or about Trump,” Blackman said.
However, it may not be possible for the judges to separate the problem from the Trump himself, said Richard Primus, a University of Michigan law professor.
“If a different president had issued this order, it would be unconstitutional? The question wrongly assumes that a different president would have given to this order. This order only makes sense from a government that wants to demonstrate to its constituency that it is not as Muslims,” Primus said. “Neither Obama nor Clinton, either President Bush, would have given to this order.”
It is not clear how the Supreme court ultimately rule in the case, but Justice Anthony Kennedy will probably be in the majority regardless of the outcome. That’s because Kennedy, closer to the ideological center of the court than his colleagues, often casts the decisive vote when the court is otherwise divided between conservatives and liberals.
Both parties in the dispute have pointed out that an opinion, Kennedy wrote in the year 2015, Kerry v. Din, a case in which an American citizen is asked to challenge the refusal of a visa to her Afghan husband.
Kennedy on the side of the other conservative judges in favor of the Obama administration and against the AMERICAN citizen Fauzia Din. But 4th Circuit chief judge Roger Gregory used Kennedy’s opinion to support his majority opinion against the Trumpet travel ban.
Judges should “step away from our reverent attitude and look behind the stated reason for the challenged action” when a lawsuit makes a strong argument about the bad faith motivating the policy, Gregory wrote, citing Kennedy’s opinion.
The dissenting judges said Gregory misread Kennedy’s opinion. “Nowhere has the Din Court to authorize behind the government’s communication, for the purpose of showing of bad faith,” the dissenters said.
Kennedy could settle the disagreement over what he meant, and whether or not the travel ban is maintained or falls.