Last week, Supreme Court Justice Neil Gorsuch joined his four Democrat-appointed colleagues to declare unconstitutional an immigrant-deportation law defended by the Trump administration. Media accounts portrayed the event as a setback for President Trump, since immigration enforcement was one of his signature campaign issues and the president appointed Gorsuch to the court.
But last week’s decision should have been an occasion not for scoring perceived “wins” and “losses,” but for humility, since it’s a reminder that good judges don’t reason on the basis of policy preferences or presidential politics. Instead, the judge follows the law, as he or she understands it, wherever it goes — and that can be unpredictable.
Observers should bear that in mind as the Supreme Court turns to another immigration-related case, this one with much bigger stakes. Trump v. Hawaii concerns stricter enforcement of America’s immigration law in the form of the Trump administration’s so-called “travel ban.” If you want to understand the court’s reasoning on this issue, focus on the deeper legal questions involved, rather than obsessing over the superficial politics and personalities.
The Supreme Court has asked the parties to address four critical questions. First, the court asked them to address whether the challenge to the president’s suspension of entry of aliens abroad “is justiciable” — that is, subject to judicial review. The question here is how broad the president’s powers are in the area of immigration, and more specifically whether the courts may review the political branches’ decisions to exclude aliens abroad. The challengers argue the courts have never condoned such a sweeping read of the president’s immigration powers, and that executive powers have limits that are testable in court.
This question poses a thorny dilemma for the court. The justices often defer to the executive branch in its decision-making, which would suggest an approval of the ban may be in the offing. But the justices are loath to say administrative decisions are entirely beyond judicial review, and in recent years the court has repeatedly and unanimously found agency decisions to be subject to judicial review. How the court reconciles these competing concerns will shed light upon what the current makeup of the court will do with the doctrine of deference going forward.
Next, the court asked the parties to consider whether the travel ban — which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that “do not share adequate information with the United States or that present…