The Supreme Court is hearing this case as it pertains to the current Executive Order that imposes a moratorium on entry into the US by persons coming from certain specified nations. (In aside, I emphasize that calling the EO a “Muslim ban” is dishonest. It presents an impermanent moratorium on entry from nations representing a bare 10% of the world’s Muslims, and it presents the same impermanent moratorium on non-Muslim countries, like northern Korea.)
Lower courts have invoked campaign rhetoric, the clumsiness of the rollout of the first EO on the matter, a made-up permanence of the moratorium, and on and on, to create a court-manufactured policy determination that the EO was somehow prejudiced in some way. With that fantasy, those lower courts have struck the EOs, one after another.
The lower courts have been imposing their own prejudices.
What’s in the text of the Executive Order? Is the EO itself legal? These are the only questions legitimately before the Justices. Campaign rhetoric is not in the EO, and so cannot be considered. The clumsiness of the rollout of the first EO had nothing to do with the EO—or with the one presently before the Justices—and so cannot be considered by the Justices. The duration of the moratorium is a political decision, and so cannot be considered.
In Connecticut National Bank v Germain, the Supremes held
…time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.
The concept plainly holds for EOs as well. If it’s not in the EO, the EO doesn’t say it.
Whether the EO’s moratorium on entry into the US from a selected set of nations is good or bad policy is certainly worthy of debate, but it’s strictly and solely a political debate to be had by We the People, and through us, our elected representatives. Politics and associated policy decisions are beyond the ken of courts.