Amicus With Dahlia Lithwick | “Travel Ban 3.0 and Rinsing off Religious Animus for SCOTUS”

Date: April 27, 2018
Host: Dahlia Lithwick (Slate)
Guest: Joshua Geltzer (Georgetown’s Institute for Constitutional Advocacy and Protection)

Overview

This episode focuses on the Supreme Court’s oral arguments in Trump v. Hawaii—the challenge to President Trump’s third version of the entry (travel) ban, widely debated for its perceived religious animus and the limits of executive power in immigration. Dahlia Lithwick and guest Joshua Geltzer provide a rich breakdown of the case’s history, key legal questions, the Court’s tone during arguments, and implications for law, religion, and national security.

Key Discussion Points & Insights

The Evolution and Context of the Travel Ban

• (04:17) Geltzer traces the travel ban from Trump’s campaign promise of “total and complete shutdown of Muslims entering the United States” through three iterations:
  • Travel Ban 1.0 (Jan 2017): Targeted seven Muslim-majority countries, quickly struck down.
  • 2.0 (Mar 2017): Now six countries, also blocked by courts and expired before SCOTUS review.
  • 3.0 (Sep 2017): Adds North Korea, some Venezuelan officials; indefinite in duration—finally heard on the merits at SCOTUS.

Quote:

“It’s different in a number of respects. Perhaps most importantly, it’s not temporary. It’s, by its own terms, indefinite.” – Josh Geltzer (05:13)

Legal Questions Before the Court

1. Statutory Challenge: The Immigration and Nationality Act (INA)

• Emergency Provision: The President can bar a “class of persons” for a period deemed necessary. Later amendments (1965) removed nationality-based quotas.
• Arguments:
  • Challengers: The ban violates the 1965 INA bar on nationality-based exclusions; also, the emergency provision was not meant for indefinite, broad bans.
  • Government: Relies on “multi-agency, neutral criteria” and national security prerogatives.

Quote:

“The idea that we as a country were shifting away from a country-by-country approach...that was supposed to be a big step forward.” – Josh Geltzer (16:15)

2. Constitutional Challenge: First Amendment, Establishment Clause

• Religious Animus: Plaintiffs cite campaign statements, policy ties to anti-Muslim rhetoric, and subsequent events, arguing the ban is rooted in religious discrimination.
• Government Response: Time, process, and policy adjustments have “rinsed off” the original religious animus.

Quote:

“An incomplete Muslim ban, if it’s still a Muslim ban, is a Muslim ban, and that still runs into the First Amendment.” – Josh Geltzer (21:58)

“Rinsing Off” Religious Animus: Is the Plate Ever Clean?

• (09:03) Lithwick and Geltzer analyze the metaphor of “washing off” original animus. Even as the administration tweaked the policy and process, public and official statements continue to refer back to the original intent.
• White House Reactions Post-Oral Argument: When pressed, the Trump administration did not definitively disavow the original campaign promise.

Quote:

“If there were just statements made in the distant past, then we could get into this really tough question...But...those statements get re-upped, doubled down on, if you will.” – Josh Geltzer (10:13)

SCOTUS Oral Arguments: Key Exchanges & Themes

Statutory Permanence vs. Temporariness

• (17:41) Mandel v. Kleindienst (1972) and McCreary County v. ACLU (2005) are debated as to whether courts must accept “facially legitimate and bona fide” reasons or probe for animus.
• Justice Kennedy and Gorsuch press counsel on whether the proclamation is “perpetual,” with Geltzer and Neal Katyal (counsel) making the case that “reporting requirements” are not equivalent to real time limits.

Is It a Muslim Ban If it’s Incomplete?

• Noel Francisco (SG): Argues it’s “the most ineffective Muslim ban one could possibly imagine.” (21:17)
• Geltzer: Cites analogy to discrimination law—targeting only some members of a group is still discrimination.

Quote:

“Let’s say you have...10 African-American employees...you fire five of them for being African-American. It’s presumably not an answer to say, ‘Well, five are still working here.’” – Geltzer (22:17)

Hypotheticals and Religious Test

• Justice Kagan’s Hypothetical (28:14): What if an anti-Semitic president uses the same process to ban entry of Israelis?
  • Francisco concedes that if advisors give a real national security reason, courts should defer—even if the president harbored animus.

Quote:

“That project, of course, is one that various press secretaries and even the president have said is intended to deliver on the promise he made back on the campaign. And that’s a religiously animated promise.” – Geltzer (26:20)

Waivers and “Spit-Shining” the Ban

• Justice Breyer’s concern (33:07): Are waivers a legitimate safety valve or just “window dressing”?
• Geltzer: Only 430 waivers out of 150 million affected; process poorly publicized, making waivers all but illusory.

Quote:

“This looks more like window dressing than anything actually paring down the scope of this travel ban.” – Geltzer (35:20)

Nationwide Injunctions & Court Authority

• Justice Gorsuch (36:35): Raises concerns about lower courts issuing “cosmic” nationwide injunctions.
• Geltzer: Counters that such injunctions are not new, and uniformity in immigration is a constitutional requirement (Article I).

National Security Rationale

• (39:49) Geltzer and 51 other ex-national security officials filed an amicus brief against the ban, arguing:
  • The ban addresses no actual security threat from the targeted countries.
  • Post-9/11 vetting already provides individualized scrutiny.
  • The visa waiver program already incentivizes info sharing; the ban ignores both statute and counterterrorism best practice.

Quote:

“That strikes me as running headlong into the statute that he inherited.” - Geltzer (16:15)

The Meta Question: The Presumption of Regularity

• Lithwick (47:35): Raises possibility that SCOTUS, more than lower courts, wants to afford the president a “presumption of normalcy”—ignoring irregular statements and conduct to preserve institutional stability.
• Geltzer: Even if January 20th, 2017 was a “reset,” the immediate and ongoing irregularities (including the chaos of implementation) overwhelm any hope for regularity.

Quote:

“Even if we indulge that presumption on January 20th...it has long since been proven that this is irregular.” – Geltzer (51:03)

Notable Quotes & Memorable Moments (with Timestamps)

• Noel Francisco (Solicitor General):
  “This is not a so-called Muslim ban. If it were, it would be the most ineffective Muslim ban that one could possibly imagine.” (00:05, 21:17)

• Josh Geltzer:
  “An incomplete Muslim ban, if it’s still a Muslim ban, is a Muslim ban and that still runs into the First Amendment.” (00:14, 21:58)

• Dahlia Lithwick:
  “It’s like a plate you have to send through the dishwasher three times...” (09:03)

• Justice Elena Kagan:
  “Let’s say in some future time a president gets elected who is a vehement anti-Semite...what emerges is a proclamation that says no one shall enter from Israel. Do you say Mandel puts an end to judicial review of that set of facts?” (28:14)

• Josh Geltzer:
  “This looks more like window dressing than anything actually paring down the scope of this travel ban.” (35:20)

• Justice Neil Gorsuch:
  “We have this troubling rise of this nationwide injunction, cosmic injunction…” (36:35)

• Dahlia Lithwick:
  “We’re living in the Twilight Zone...” (23:11)

• Geltzer’s Ending Thought:
  “To put the president back within lawful limits and then to allow real national security work to be done, that strikes me as something that should be reassuring rather than concerning.” (53:40)

Segment Timestamps

• Intro and Context: 00:05–04:17
• How Did We Get Here?—Ban 1.0 to 3.0: 04:17–06:45
• Legal Framework: INA & Establishment Clause: 06:45–09:03
• Religious Animus & "Dishwasher Plate" Theme: 09:03–14:21
• INA, Neutral Criteria, Nationality Bar: 14:21–19:27
• Arguments Over Scope & Permanence: 17:41–19:35
• Is It a Real Muslim Ban? 21:17–23:04
• Facially Legitimate?: Mandel, McCreary, Hialeah: 25:34–27:52
• Justice Kagan Anti-Semitism Hypothetical: 28:14–29:36
• Waivers & Window Dressing: 33:07–35:31
• Nationwide Injunctions: 36:35–38:37
• National Security, Vetting, and Visa Waiver Program: 39:49–43:34
• Meta: Presumption of Regularity: 47:35–51:03
• Coda—Executive Branch Power: 52:17–53:56

Conclusion

Lithwick and Geltzer expertly guide listeners through the legal and human stakes of the Trump v. Hawaii case, demystifying technical legal questions and SCOTUS argument dynamics. The episode highlights how the Court (and country) are wrestling not only with statutory minutiae and constitutional doctrine, but with the realities of presidential rhetoric, evolving norms, and the rule of law in turbulent times.