Trump’s travel ban – a New Yorker’s perspective

New York based Bankside Chambers alumnus James Hosking shared his views on President Trump’s travel ban at a recent event with Bankside members while in Auckland.

Alan Sorrell introduced James by giving a brief overview of his impressive career, which included early days at Bankside Chambers followed by a stint at a New York firm before branching out to start his own firm. His practice specialises in international dispute resolution, especially arbitration. James has also previously represented pro bono Guantanamo Bay detainees.

With a wry sense of relief, James noted that it was good to have a break from US politics while on the plane to New Zealand, as President Trump had been featuring heavily in the daily news recently.

Known under many different labels – from ‘immigration policy’ to the ‘travel ban’ and even at times the ‘Muslim ban’ – the issue of who can come to America is coming up for argument in the Supreme Court in October.  It will be the first time the US Supreme Court addresses this aspect of the Trump administration’s controversial policy of significantly restricting immigration.  Specifically at issue here, is an executive order that prohibits entry into the US of nationals from six predominantly Muslim countries and also limits the intake of refugees.

James commented that it’s a scenario that brings to life juicy issues around executive power, judicial review, and the extent to which the Supreme Court may uphold two federal appellate court decisions that enjoined implementation of much of President Trump’s travel ban.

By way of background, James gave his view that the executive order at issue has little policy purpose and in fact runs contrary to the advice of several government agencies.  Rather, the order is primarily a political statement by President Trump directed to engage his core supporters.

In terms of legality of the travel ban, James reflected on the hypothetical scenario that if President Barack Obama had issued the same executive order, it may have passed constitutional muster.  However because of President Trump’s controversial comments about the purpose of the travel ban during his candidacy and after his election, the order is now being subjected to an additional element of scrutiny.

Judges who have analysed the order so far have found it unlawful for a few reasons, at least in part because of statements Trump has made about the purpose of the travel ban – his signature statement during his campaign being “as President, I will ensure a total and complete shut down of Muslims entering the US until our country’s representatives can figure out what is going on.”  Interestingly the statement remained on his website even after his inauguration and until the day of the Court of Appeal hearing.

Only seven days after his inauguration, President Trump passed the first of his travel ban orders.  At the signing ceremony, the President referred to the order’s title of ‘protecting the nation’ but declared with a smile “we all know what that that means”, a signal suggesting that despite its title it really was the embodiment of his long-promised ‘Muslim ban’.

The order was heavily litigated and eventually a nation-wide injunction was issued and upheld by the appeal court.  This prompted a Twitter rant from the President accusing the trial judge of putting the US at risk as well as stating that the appellate court decision was motivated by political bias, rounding out his tirade with “see you in Supreme Court.”

However, the Trump administration instead revoked the first order and issued a second order, which the President characterised as a ‘watered down’ and ‘politically correct’ version of the first order.  The new order limited its effect to prohibiting entry of nationals from six (rather than the original seven) predominantly Muslim states and provided certain expanded exceptions.  The order further differed from its predecessor in removing a reference to preferential treatment for Christians seeking entry to the US from Syria.  It also stated explicitly that it was not motivated by religious bias.

Nevertheless, the order was enjoined by two federal trial courts and the injunctions were upheld by the appellate courts in both jurisdictions.  It is those decisions that are now before the US Supreme Court.

James’ view is that the most likely outcome is that the Supreme Court will take a different approach from the appellate rulings and uphold the executive order.  The Chief Justice will strive to obtain as close to a unanimous decision as possible, as was seen in the Obamacare and gay marriage cases. The Court is unlikely to uphold reliance on candidate Trump’s campaign statements as a sound basis for finding unconstitutionality.  But the issues regarding the scope of the President’s authority to issue such an expansive order based only on nationality are more finely balanced.  The Court may also be influenced by the fact that there is probably a lot more Supreme Court litigation to come with many immigration-related orders to be heavily litigated.

Reflecting on his experience on the Guantanamo Bay cases, James noted that it took several Supreme Court cases before the justices sent a strong message that the executive had crossed the line in terms of what was an acceptable use of executive power. So there’s likely to be plenty more high-stakes judicial review to come.

Stepping back from the legal perspective, James said the extent of the debate over the President’s travel ban order could be understood also as a product of Trump’s legitimacy problem. While duly elected, he has consistently flouted conventions on what constitutes “presidential” behaviour. His willingness to make incendiary comments and engage in very personal attacks on those he sees as impeding his objectives, has in turn led to the media, courts and Congress pushing back on his policies in a way that is equally unprecedented.

Aside from the immigration debate, President Trump was elected on a platform of remaking several sets of regulatory rules – international trade, environmental code, labour protection, education – all initiatives will likely be implemented by executive orders and subject to judicial review. And in all of these cases, based on his statements to date, President Trump tends to take controversial positions, often at odds with those of his advisors and where his language may have considerable impact in a judicial review context.

In his closing remarks, James noted that regardless of what happens in the Supreme Court in the unique circumstances of the travel ban appeal, the extent to which the President’s own words can be used as evidence in judicial review is likely to remain a live issue.  President Trump seems unlikely to change his combative style.  So what may seem like an arcane legal point could have a real impact on the President’s implementation of his far-reaching legislative agenda.