(CNSNews.com) - In oral arguments in the case of Trump v. Hawaii today, Justice Elena Kagan suggested as a hypothetical that the United States elects a president “who is a vehement anti-Semite and says all kinds of denigrating comments about Jews,” and that, once in office, this president issues “a proclamation that says no one shall enter from Israel.”
“This is an out-of-the-box kind of President in my hypothetical,” Kagan said in an exchange with Solicitor General Noel Francisco as people in the courtroom laughed, according to the transcript and audio recording of the oral arguments.
“He thinks that there are good diplomatic reasons, and there might--who knows what the future holds, that there might be good diplomatic reasons to put pressure on Israel or to say we want Israel to vote a certain way in the U.N. and this is a way to better our diplomatic hand, and so this is what he does,” said Kagan.
Trump v. Hawaii is a case that challenges the constitutionality of a proclamation President Donald Trump issued last year that bars certain aliens from eight countries from getting visas to enter the country because the governments of these countries do not allows sufficient vetting of the visas.
“The Proclamation explained that, based on the findings of the review process, these countries do not share adequate information with the United States to assess the risks their nationals pose, or they present other heightened risk factors,” Solicitor General Francisco said in the Petition for a Writ of Certiorari presented to the court in January.
In the Immigration and Nationality Act, the Congress gave the president the power to issue a proclamation such as the one Trump issued.
“Whenever the president finds the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” he law says, “he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem appropriate.”
Here is the transcript of the exchange between Justice Kagan and Solicitor General Francisco on the hypothetical anti-Semitic president:
JUSTICE KAGAN: So let me give you a hypothetical, and it's just--you know, I think that there are ways to distinguish Mandel in this case, but—but--but, you know, just in terms of thinking about what Mandel really forecloses here.
GENERAL FRANCISCO: And I--because Mandel, there are only two cases in the area, and it's--it's hard to understand the full contours of it.
JUSTICE KAGAN: I agree. So this is a hypothetical that you've heard a variant of before that the government has, at any rate, but I want to just give you.
So let's say in some future time a--a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency and, in the course of that, asks his staff or his cabinet members to issue a proc--to issue recommendations so that he can issue a proclamation of this kind, and they dot all the i's and they cross all the t's.
And what emerges--and, again, in the context of this virulent anti-Semitism--what emerges is a proclamation that says no one shall enter from Israel.
GENERAL FRANCISCO: Right.
JUSTICE KAGAN: Do you say Mandel puts an end to judicial review of that set of facts?
GENERAL FRANCISCO: No, Your Honor, I don't say Mandel puts an end to it, but I do say that, in that context, Mandel would be the starting point of the analysis, because it does involve the exclusion of aliens, which is where Mandel applies.
If his cabinet--and this is a very tough hypothetical that we've dealt with throughout--but if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the President would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.
JUSTICE KAGAN: Well, the question is--
GENERAL FRANCISCO: I would also suggest, though--if I could finish that, Your Honor--that I think it would be very difficult for that to even satisfy Mandel rational basis scrutiny. I'd need to know what the rational was. Given that Israel happens to be one of the country's closest allies in the war against terrorism, it's not clear to me that you actually could satisfy--
JUSTICE KAGAN: Well--
GENERAL FRANCISCO: --Mandel's rational basis standard on that, unless it truly were based--
JUSTICE KAGAN: Yes.
GENERAL FRANCISCO: --on a cabinet-level recommendation that was about national security.
JUSTICE KAGAN: General, I'm--let's--this is an out-of-the-box kind of President in my hypothetical. And--
GENERAL FRANCISCO: We—we--we don't have those, Your Honor.
JUSTICE KAGAN: And--and, you know, he thinks that there are good diplomatic reasons, and there might--who knows what the future holds, that there might be good diplomatic reasons to put pressure on Israel or to say we want Israel to vote a certain way in the U.N. and this is a way to better our diplomatic hand, and so this is what he does.
And--and who knows what his heart of hearts is. I mean, I take that point. But the question is not really what his heart of hearts is. The question is what are reasonable observers to think--
GENERAL FRANCISCO: Right.
JUSTICE KAGAN: --given this context, in which this hypothetical President--
GENERAL FRANCISCO: Sure.
JUSTICE KAGAN: --is making virulent anti-Semitic comments.
GENERAL FRANCISCO: Right. And, Your Honor, it's a tough hypothetical, but it's why I also think that this is a relatively easy case, because we're willing to even assume for the sake of argument that you consider all of the statements.
And we're even willing to assume for the sake of argument, though we think that it's wrong, that you applied some kind of domestic Establishment Clause jurisprudence, because we're quite confident that, given the process and substance that form the basis of this proclamation, no matter what standard you apply, this proclamation is constitutional.
Since we don't have the extreme hypothetical that you're suggesting, Your Honor, we do have a multi-agency worldwide review and a cabinet-level recommendation that applied a neutral baseline. And this wasn't done just by the cabinet secretaries but by the agencies to every country in the world and concluded—“