Terry H. Schwadron
June 27, 2018
OK, Supreme Court, what part of a Muslim ban seems not aimed at a religious minority?
And why wouldn’t President Trump’s own words in explanation of what he was seeking bear on the matter at hand?
No one doubted that the president lacked “authority” to act. Rather, it was declaring the subject of his travel ban as visitors and immigrants from several Muslim-majority nations that abridged the president’s legal ability to act.
But by another 5–4 majority, the Supreme Court decided Tuesdaythat three tries in the making were just good enough. Adding North Korean and designated leaders of Venezuela apparently added just a fig leaf’s worth of coverage to Trump’s bald rejection of Muslim travelers in the name of national security.
Chief Justice John G. Roberts Jr. tried to play down the political aspects of the case,writing that the presidential proclamation that led to the ban “is squarely within the scope of presidential authority.” He said that authority has not been undermined by “this President’s words” and rejected arguments that the order was biased because of the predominant religion of most of the affected countries.
“The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” he wrote. “The text says nothing about religion.”
Roberts added: “We express no view on the soundness of the policy.”
Geez, that was the whole point of the case.
The juxtaposition of this Supreme Court win, the result of appointing conservative Neil Gorsuch to the court, with the images from the Southern border reflect a societal acceptance of official antipathy towards designated minorities, a kind of racism despite the inadequate labeling. The court just decided that we ignore what reasons the president offers for bad policy, and just judge whether the president has the literal constitutional power to act in the name of national security.
That migration from the named Muslim countries has dwindled to a mere trickle seems irrelevant; so does the fact that other Muslim-majority countries, like Saudi Arabia, remain outside the reach of the Travel Ban.
The 5-to-4 vote pit a winning conservative majority against four more liberal justices.
Ever-gracious, Trump tweeted, “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!” adding through a statement that the ruling was “a vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country.”
Lower courts had struck down each of the three iterations of the president’s travel ban, the first of which was issued in January 2017.
Justice Sonia Sotomayor wrote a stinging rebuttal, joined by Justice Ruth Bader Ginsburg. She noted the president’s campaign statements calling for a “complete and total shutdown” of entry into the United States by Muslims. She noted the anti-Muslim videos the president shared on Twitter, including one titled “Muslim destroys a statue of Virgin Mary!”
“Take a brief moment and let the gravity of those statements sink in,” she said, reading from the bench. “And then remember” that the statements and tweets were spoken or written “by the current president of the United States. Sotomayor repeatedly called out the president by name in her lengthy statement and said the majority’s decision “repeats the tragic mistakes of the past” and “tells members of minority religions” in the United States that “they are outsiders.”
The court, she said, “blindly accepts the government’s invitation to sanction an openly discriminatory policy” and is essentially “replacing one gravely wrong decision with another.” Sotomayor compared the decision to Korematsu v. United States, in which the Supreme Court in 1944 upheld the detention of Japanese Americans during World War II.
Roberts said that “it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.”
The current ban, issued last fall, barred various travelers from eight countries, six of them with Muslim majorities. They are Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. But restrictions on North Korea and Venezuela were not part of the challenge. Chad was later removed from the list.
Challengers led by the state of Hawaii, pointed to another section of the law, which says a person may not be denied a visa “because of the person’s race, sex, nationality, place of birth, or place of residence.” Allowing the president to ban citizens of a nation, the challengers said, amounts to giving the president a “line-item veto over the entire immigration code.”
The justices were reviewing a unanimous ruling from a three-judge panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco. That panel said the third version of the travel ban suffered from the deficiencies of the first two — that Trump had again exceeded his lawful authority and that he had not made a legally sufficient finding that entry of those blocked would be “detrimental to the interests of the United States.”
The U.S. Court of Appeals for the 4th Circuit in Richmond struck down the ban on the constitutional question. The 9-to-4 decision took a deep dive into Trump’s statements and tweets since he became president and concluded that the proclamation, like the first two, was motivated not by national security concerns but by antipathy toward Muslims.
Only the five more conservative justices on the court chose not to listen to the president’s words.