Q&A with Professor Doni Gewirtzman: The Supreme Court and President Trump’s Travel Ban

On Monday, June 26, the U.S. Supreme Court agreed to hear oral arguments in the challenge to the executive order issued by President Trump banning travel from six countries for 90 days. New York Law School Professor Doni Gewirtzman, who teaches constitutional law, answers questions about this case.

What is your reaction to Monday’s news?
The U.S. Supreme Court’s decision to hear the travel ban case in the fall isn’t much of a surprise. The case involves a set of complex and unresolved issues about immigration policy, executive power, national security, and religious discrimination, so the court was likely to get involved eventually. The lower courts had stayed implementation of the policy, and it’s notable that the Supreme Court left much of that stay in place.

There is a legitimate question about whether the court will ever actually rule on the merits of the policy. The travel ban is a temporary policy that is only in effect for 90 days. That clock is set to expire before the court will hear the case in October. If it expires, this will likely moot the case, meaning that the case may return to the lower courts for them to review whatever new policy the Trump administration adopts. I expect the Supreme Court will eventually issue a ruling on the merits; it just may not happen in the fall and it may address a new and different policy based on a different set of facts.

What are the constitutional issues at the center of the case?
The case has at least two major constitutional components. The first is about religious discrimination and whether the travel policy was motivated by anti-Muslim prejudice. If so, the case will raise important issues under the First Amendment’s religious liberty provisions. The second issue is about national security and how closely courts should review a president’s assessment that a policy is justified by national security concerns, particularly in the area of immigration.

What should law students look for as they follow the case?
This is a great case for law students to follow and learn from, and I’d encourage my students to look for four things. First, I’d pay close attention to the procedural posture of the case. It’s entirely possible the court will decide the case is moot and will not rule on the merits. Second, I would track whether the court is willing to use evidence of Trump’s statements during the campaign and his presidential tweets to demonstrate the motivation behind the policy, since the question of whether the policy was motivated by religious prejudice will be front and center. Third, I’d pay attention to how closely the court scrutinizes the national security justification for the ban, since both of the lower courts were skeptical of the administration’s national security justification for the policy. Finally, this will be a really important ruling in the area of immigration law. I would pay attention to the extent to which the normal rules of constitutional law apply when it comes to the federal government’s power to determine who is or isn’t allowed to enter the country.