Observations on the Travel Ban Decision

As Scott noted earlier, the Supreme Court upheld President Trump’s travel ban this morning on a 5-4 vote. You can read the decision here. These are my first impressions on reading the justices’ opinions:

1. The ruling is obviously correct. Chief Justice Roberts wrote the majority opinion. Roberts begins where he should, with 8 U.S.C. § 1182(f), which gives the President broad authority to restrict the entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.” As Roberts points out, “By its terms, §1182 (f) exudes deference to the President in every clause.” He expresses doubt about whether the Court even has the power to review the President’s determination under § 1182 (f), but finds that in any event, “[t]he proclamation falls well within this comprehensive delegation.”

That is the statutory issue. The constitutional question is whether the travel order violates the Establishment Clause of the First Amendment. Note how far we have come since the Constitution was adopted: The First Amendment says that “Congress shall make no law respecting an establishment of religion.” The plaintiffs’ theory was that by allegedly discriminating against Muslims, President Trump’s order “established” other religions–all of them except Islam, apparently.

Since the order never mentions Islam (or any other religion), it is hard to interpret it as an exercise in religious discrimination. Especially since two of the countries to which it applies are not Islamic (Venezuela and North Korea), and the countries covered by the order include only 8% of the world’s Muslims. In any event, the majority sensibly held that Trump’s proclamation is “facially legitimate and bona fide,” and that national security represents a rational basis for the order.

2. The fact that four justices dissented is extraordinary. Their grounds are, in my view, pretextual. Justice Breyer wrote a dissent that strikes me as halfhearted. He goes on and on about the implementation of the travel order, in a manner that is entirely unpersuasive. He says that he would have sent the case back to the District Court for more fact-finding.

3. Justice Sotomayor wrote the dissent that Democrats were hoping for. It is a fiery denunciation of President Trump, but one that includes little material relevant to the case. She quotes, at great length, statements that candidate Donald Trump made during the campaign about wanting to restrict all Islamic immigration. One problem, of course, is that the order at issue doesn’t bar all Islamic immigration–it affects only a tiny percentage of it. The fact (if it is a fact) that Trump would have preferred to issue a different order, obviously can’t make the order he did issue unconstitutional.

Justice Sotomayor and Justice Ginsberg, who joined in her dissent, do not shy away from the conclusion that if another president had issued the same order, it would have been valid and constitutional. It is only Donald Trump who can’t issue this proclamation, on account of various statements he made that the justices interpret as being hostile to Islam. If Hillary Clinton had issued the same order, it would have been fine.

I therefore see the Sotomayor opinion (and the Breyer opinion, too, although it is more circumspect) as political, not legal, documents. They reflect the Democratic Party’s continuing refusal to accept the result of the 2016 election. In their view, Donald Trump isn’t really our president: he doesn’t have the powers that any other president would have.

4. Somtomayor went so far as to cite the Korematsu case, which upheld the internment of Japanese citizens during World War II, as analogous to Trump’s travel ban. The analogy, as Chief Justice Roberts rightly points out, is absurd. Again, Sotomayor’s only plausible purpose was political, not legal.

5. The four Democrats on the Supreme Court often disagree among themselves. However, in all cases that are viewed as both political and important, they vote as a bloc. I assume they don’t take an oath to the DNC when they are nominated, but their lockstep acquiescence in the party line in high-profile cases is undeniable.

6. As many expected, the Democratic dissenters cite the recently-decided Masterpiece Cakeshop decision in support of their position. The logic goes something like this: The law can’t force a Christian baker to participate in a same-sex wedding to which he has religious objections. Therefore, the President can’t protect the safety of Americans by suspending immigration from selected countries based on a terrorist risk profile and those countries’ unwillingness or inability to share information about risks posed by their nationals. The technical term for that is non sequitur.

The bottom line is that Trump vs. Hawaii came out the right way, but it is deeply disturbing that four justices were willing to put politics before jurisprudence.

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