Will the Supreme Court Back Trump? Politico says don't count on party line split.
Will the Supreme Court Back Trump?
When his travel ban hits the highest court, don't count on it splitting on party lines.
By Richard Primus
February 10, 2017
What happens next with President Donald Trump's travel ban? Now that the Ninth Circuit has delivered a further blow to the Administration’s Executive Order barring people from seven designated countries from entering the United States, there are two ways forward. Either the Supreme Court quickly agrees to hear an appeal from the Ninth Circuit’s ruling, or else the case goes back for a full trial and then a set of appeals—in which case it's still likely to end up in the Supreme Court later.
When it hits the Supreme Court, many observers are expecting a partisan split. That would mean a 4-4 deadlock if the case reaches the Court while it’s still shorthanded, and a 5-4 vote to uphold the order if Judge Neil Gorsuch takes a seat on the Court before the case gets there. And maybe that partisan calculus will turn out to be right. But another outcome is at least as plausible. Given the content and the context of this executive order, it’s easy to imagine at least six Justices pronouncing it unconstitutional—and if Gorsuch participates, seven.
The pivotal question for the court will be this: How much deference should the courts give the executive branch to set policy? Traditionally, on issues of immigration and national security, courts have given the White House a great deal of leeway, leaning hard toward upholding executive action that might plausibly be constitutional. The reasons lie not in any particular text in the Constitution—nowhere does it say “courts should stay out of immigration and security issues”—but in a set of practical judgments that courts have made about the relative capacities of the different federal branches. The president often needs to act quickly and decisively in national security contexts, and it might be seriously dangerous to ask the president to wait for a national-security order to work its way through litigation. Moreover, the executive branch is presumed to have information and expertise in foreign affairs that far exceeds anything that judges know or are equipped to analyze. The president has a huge apparatus of professional intelligence gatherers, a foreign service stocked with career diplomats, and any number of quiet contacts with foreign governments, all of which make his decision-making process far more likely than a panel of judges to understand the significance or consequences of any given action. Recognizing their own limitations by comparison, courts have been reluctant to second-guess presidential action in foreign affairs. Most of the time, they figure, the president just knows better.
This executive order, however, might look different to the court. As far as we know—and a well-litigated case would put all of these things on the record—the travel ban sidestepped everything that ordinarily injects expertise into a presidential decision. There was no inter-agency process to include the expertise of informed analysts from the worlds of immigration, national security, diplomacy, and counterterrorism. Indeed, no serious experts at the intelligence agencies seem to have participated at all. The order was instead rushed out from the White House itself, haphazardly. Moreover, the administration has clearly signaled how little regard it has for professional expertise in these areas. First there were Trump's repeated comments, both as candidate and president-elect, deriding both the intelligence agencies and the senior military leadership. And simultaneously with the issuance of the executive order on refugees and immigrants, the president installed Steve Bannon, a political advisor with no particular expertise in national security, to the National Security Council. Indeed, a significant and bipartisan group of experts in national security and foreign affairs have told the courts that the order excluding travelers from seven predominantly Muslim countries is damaging to national security. Maybe that’s right, and maybe it isn’t: a court might not be well-positioned to know. But it wouldn’t be hard for courts to recognize it as a more sophisticated form of analysis than anything the executive branch is offering. If the court concludes that the Trump Administration isn’t actually making decisions on the basis of superior information and professional expertise, one of the key reasons for judicial deference will have vanished.
More:
http://www.politico.com/magazine/story/2017/02/supreme-court-trump-travel-immigration-ban-214763
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