Can the travel ban continue? Supreme Court to hear arguments Wednesday
Art museums, a Gold Star father, lawmakers, states and one of Donald Trump’s personal lawyers are pleading with the Supreme Court ahead of Wednesday’s oral arguments on the fate of the President’s travel ban.
The dozens and dozens of filings, known as “friend of the court” or “amicus” briefs, are meant to offer context and remind the justices that their eventual ruling could have historic implications on areas unrelated to current policy.
The Trump administration’s third version of the travel ban issued in September places varying levels of restrictions on foreign nationals from seven countries: Iran, Libya, North Korea, Syria, Venezuela, Somalia and Yemen. (Chad was removed from the list earlier this month.)
“Nobody knows for sure whether any particular amicus brief changes a justice’s mind in any particular case, but we do know that the justices are using the briefs more than ever before — citing to them in their opinions regularly asking about them frequently at oral arguments,” said Allison Orr Larsen, a Professor of Law at the William and Mary Law School.
Here are some of the highlights:
Against the ban
Critics of the government say the ban does not protect national security.
“We’re a group that believes courts should defer to the president on national security, but only when there’s a real national security threat presented, not a pretense of one,” Joshua A. Geltzer, the executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law said. He signed a brief submitted by former national security officials.
“In three tries, the government still hasn’t shown what national security threat could require banning 150 million people from entering this country, especially when no national from a banned country has caused a terrorism-related death in the United States since 1975,” he said.
Another is signed by Karen Korematsu, the daughter of the late Fred T. Korematsu ,the lead plaintiff in a Supreme Court case that challenged the mass incarceration of Japanese Americans during World War II. In 1944, the Court ruled against Korematsu in a decision that has since been widely condemned.
Lawyers for Karen Korematsu emphasize the “human toll and constitutional harms wrought by governmental actions , carried out in the name of national security , that impact men, women, and children belonging to disfavored minority groups.”
Linking the case to the current travel ban, they argue that “invoking national security, the government seeks near complete deference to the President’s decision to deny indefinitely all immigrant and most non-immigrant visas to nationals of six Muslim majority countries.”
Lisa Blatt, an Arnold & Porter lawyer, represents Iranian-American nonprofit organizations who argue that the latest version of the travel ban continues to “demean and stigmatize minority communities.” She points out that while the government emphasizes that waivers are available on a “case-by-case” basis, in reality, those seeking the waivers are subject to “opaque, ad hoc and entirely discretionary decisionmaking.”
The brief highlights the story of Nageeb Alomari, a citizen of the United States and a father of three, whose wife and children live in Yemen. He was unsuccessful in his attempts to get a visa for one of his daughters who has cerebral palsy.
If the justices are curious about how many visas were issued before and after the travel ban proclamation took effect, Blatt provides the information.
“In 2016,” she says that the United States issued more than 73,500 immigrant and nonimmigrant visas to nationals of the countries affected by the travel ban.
In contrast, she argues that according to the State Department, in the first month after the latest Proclamation took effect of the 8,406 visa applications consular officers received and processed from those impacted by the ban, 6,533 were denied.
“Only two waivers had been approved by February 15 — a rate of less than .025%,” Blatt wrote.
Another brief comes from lawyers for the Association of Art Directors, who tell the justices that the proclamation has forced some museums to cancel or postpone planned exhibits that would have “showcased important works by artists from the covered countries” because artists, lenders, collectors and curators have not been able to travel under the ban.
One artist, the prominent sculptor Parviz Tanavoli, who is a dual national of Iran and Canada, decided he would not travel to the United States because he didn’t want to be interrogated “just because I was born in Iran.”
The Portland Art Museum is concerned with its ability to get a visa for a renowned Syrian calligrapher, Khaled Al-Saa’i. The artist was slated to create a mural for an indoor sculpture. “The loss of these projects causes substantial harm,” the brief said, “it does so by depriving Americans of important works of art, great performances, and scholarly presentations, thereby denying the public opportunities to gain insights into the history, culture, and aspirations of the people of the Designated Countries.”
One hundred and twelve museums have signed on to the brief including the Art Institute of Chicago, the Carnegie Museum of Art and the Frisk Collection in New York, and they argue that they are “now doubtful of future exhibits that rely on the support of persons who are covered nationals of the Designated Countries.”
When exhibits are canceled, they say, “the American public is denied the opportunity to view and study unique works of art that provide an invaluable window into world culture.”
Larsen says that in recent years there has been a big uptick in the number of amicus briefs that have been filed — an 800% increase in filings since the 1950’s and a 95% increase since 1995.
“To put it in perspective,” she said “Roe v. Wade (the landmark abortion case) had about 20 amicus briefs and Brown v. Board (striking down school desegregation by race) had only six.”
Supporters of the ban
Supporters of the government’s position in the case are also well-represented in court filings.
Andrew C. McCarthy, who served as an Assistant United States Attorney in the Southern District of New York and led the prosecution of Omar Abdel Rahman, the so called “Blind Sheikh” who was involved in the 1993 World Trade Center bombing, signed on to a brief by national security experts.
McCarthy believes that the President has the authority to issue the proclamation and that it is not the “province of the judiciary” to say otherwise.
“At the end of the day,” McCarthy argued, “it is not the role of the judiciary to intercede in such matters, and this Court should clearly say so.”
He says the ban offers the majority of Americans what they want: “Muslims who embrace our way of life invited in and Muslims who threaten our way of life kept out.”
Attorney General Ken Paxton of Texas also supports the government, signing on to a brief filed by 14 states.
They emphasize that the proclamation was issued after a worldwide review of vetting procedures that was conducted by the Trump administration. They say the ban does not amount to a “Muslim ban” because it classifies aliens by nationality.
“That is not an invidious pretext-especially given the Proclamation’s detailed national-security findings, the resonance of those findings in determinations of numerous federal officials, and the judicial deference owed to executive decisions in this context,” the brief states.
One of the President’s own lawyers in the Russia investigation, Jay Sekulow, who also serves as Chief Counsel of the conservative American Center for Law and Justice, has filed a brief in support of the travel ban. He says that the courts should not look to comments Trump made during the campaign that some believed showed religious animus.
“Suggestions of possible religious or anti-religious motives, mined from past comments of a political candidate or his supporters uttered on the campaign trail as private citizens, is not enough to defeat the proclamation,” Sekulow wrote.
Instead, he said, the court should “limit its inquiry to official acts or statements” in deciding the legality of the ban.
In its brief in support of the administration, lawyers for an organization called the Foundation for Moral Law argue in part that the travel ban is “compatible with the teaching of the Bible on immigration.”
“The New Testament” affirms, the brief said “that civil government exists to protect the innocent and punish those who do evil.”
Scholars of Mormon History have filed a brief in support of neither party. Their lawyers focus on the “federal government’s efforts to restrict Mormon immigration as a part of the government’s sustained 19th century legal campaign against the Mormon faith.”
Taking no position on the legality of the travel ban, the lawyers say their whole purpose is to provide the court with an example of religious discrimination in immigration from the past.
“If the Proclamation does target Muslims for disfavored treatment, then the history of the government’s mistreatement of Mormons suggests it could take decades-if not longer-to undo the damage that official action would cause to both America’s body politic and the place of Muslims in our society,” they argued.
While amicus briefs aren’t always relied upon, sometimes they are powerful enough to influence a justice’s thinking.
Back in 2003, for instance, the court was considering a big affirmative action case concerning the admissions plan at the University of Michigan Law School. Lawyers for retired military officers filed an amicus brief in support of the school.
When Justice Sandra Day O’Connor wrote the majority opinion she referred to “high-ranking retired officers” who assert that a “highly qualified, racially diverse officer corps” is essential to the military’s ability to fulfill its mission to provide national security.
The court upheld the law school’s plan.