Supreme Court Upholds Trump Travel Ban
In a 5-4 party-line vote, the High Court declared that the Constitution and Federal Law give the President broad authority over immigration.
AP (“Supreme Court upholds Trump travel ban“):
The Supreme Court on Tuesday upheld President Donald Trump’s ban on travel from several mostly Muslim countries, rejecting a challenge that it discriminated against Muslims or exceeded his authority.
The 5-4 decision is the court’s first substantive ruling on a Trump administration policy.
Chief Justice John Roberts wrote the majority opinion, joined by his four conservative colleagues.
Roberts wrote that presidents have substantial power to regulate immigration. He also rejected the challengers’ claim of anti-Muslim bias.
The court may have signaled its eventual approval in December, when the justices allowed the policy to take full effect even as the court fight continued and lower courts had ruled it out of bounds.
Roberts was careful not to endorse either Trump’s provocative statements about immigration in general and Muslims in particular.
“We express no view on the soundness of the policy,” Roberts wrote.
Justice Sonia Sotomayor wrote in a dissent that based on the evidence in the case “a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.” She said her colleagues arrived at the opposite result by “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
The SCOTUSBlog summary (presumably copied from the Opinion itself):
Holding: The President has lawfully exercised the broad discretion granted to him under 8 U. S. C. §1182(f) to suspend the entry of aliens into the United States; respondents have not demonstrated a likelihood of success on the merits of their claim that Presidential Proclamation No. 9645 violates the establishment clause.
Judgment: Reversed and remanded, 5-4, in an opinion by Chief Justice Roberts on June 26, 2018. Justice Kennedy and Justice Thomas filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.
From the SCOTUSBlog live blog:
Addresses the issue of the president’s statements on excluding Muslims from the US. Says “the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”
[…]
Court says that it will look beyond the face of the Proclamation to consider the plaintiffs’ extrinsic evidence about the president’s motivations, “but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds
Says the proclmation is based on legistimate purposes, without saying anything about religion. Proclamation is result of a “worldwide review process” by multiple cabinet agencies. Notes that it doesn’t apply to Iraq, “one of the largest predominately Mulsim countries in the region.”
“under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.”
[…]
This, from the majority, is notable:
Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. See post, at 26-28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).
[…]
Justice Kennedy’s concurrence says, essentially, that there are some things that are unconstitutional that the Judiciary is not in a place to correct or address. It’s subtext is pretty close to the surface, and seems designed to chastise the Executive while agreeing with the majority that there was not anything the Court could do about it.
The full opinion is here in PDF form, along with various concurrences and dissents.
Excerpts from the Syllabus:
Held:
1. This Court assumes without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. See Sale v. Haitian Centers Council, Inc., 509 U. S. 155. Pp. 8-9.
2. The President has lawfully exercised the broad discretion granted to him under §1182(f) to suspend the entry of aliens into the United States. Pp. 9-24.
(a) By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here.[…]
(b) Plaintiffs have not identified any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high-risk countries to provide a minimum baseline of reliable information. Further, neither the legislative history of §1182(f) nor historical practice justifies departing from the clear text of the statute.
(c) Plaintiffs’ argument that the President’s entry suspension violates §1152(a)(1)(A) ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into
the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. Had Congress intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response
to an epidemic, or even if the United States were on the brink of war. Pp. 20-24.
3. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment
Clause. Pp. 24-38.[…]
(b) Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the campaign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the
Presidency itself. Pp. 26-29.
(c) The admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. That review is limited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow inquiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of applying rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. Pp. 30-32.
(d) On the few occasions where the Court has struck down a policy as illegitimate under rational basis scrutiny, a common thread has been that the laws at issue were “divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests.” Romer v. Evans, 517 U. S. 620, 635. The Proclamation does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion.
I haven’t yet read the Kennedy concurrence or the Sotomayor dissent, save for the summaries quoted above. But the Roberts opinion strikes me as specious.
I’m extraordinarily sympathetic to the notion that the President has both Constitutional, inherent, and statutory powers with regard to controlling our borders. And I agree with the Majority that, so long as a factual basis is offered, the Judiciary ought grant broad leeway to the Executive given those powers. Here, though, we have a President who, as a candidate and numerous times since taking office, has made statements obviating the proffered national security rationale for this policy. He has repeatedly demonstrated animus against Muslims and others. His various representatives, notably including Rudy Giuliani, have directly said that they were looking for a “Muslim ban.” It’s absurd for the Court to ignore those statements and take the sham reasoning offered at face value, particularly when those reasons are clearly not founded on any rational basis. Most notably, the ostensible reasons for the ban apply much more forcibly to countries, including Saudi Arabia, to which the ban does not apply.
It would be one thing if the Courts lacked either the authority to look at outside evidence or had historically been extremely reluctant to do so. Indeed, Roberts concedes that they can consider outside facts. To then claim that they should be ignored just because the Executive offers a sham study, which was clearly aimed at reaching a preordained conclusion, is laughable.
In fairness, Roberts saves his best argument for the closing paragraph:
Three additional features of the entry policy support the Government’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. Pp. 33-38.
But there were Muslim-majority countries excluded from the list to begin with, including terrorist sponsors like Saudi Arabia. That states who should never have been on the list on pragmatic grounds were soon removed is evidence that it was hastily and shoddily crafted, not that it’s a reasonable manifestation of national security policy. And a “waiver program” for a law that should never have been enacted hardly solves the underlying problem.
The fact that the four dissenters couldn’t sign off on a single rationale for why the ban was unlawful, however, is not a great sign. Breyer wrote one, joined by Kagan, and Sotomayor wrote another, joined by Ginsburg. They’re not controlling, so I’m not going to bother to excerpt them in detail. But two passages from Sotomayor’s dissent are worth noting:
The Court’s decision today . . . leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims
entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.
And:
Given President Trump’s failure to correct the reasonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s lawyers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint. See United States v. Fordice, 505 U. S. 717, 746-747 (1992) (“[G]iven an initially tainted policy, it is eminently reasonable to make the [Government] bear the risk of nonpersuasion with respect to intent at some future time, both because the [Government] has created the dispute through its own prior unlawful conduct, and because discriminatory intent does tend to persist through time” (citation omitted)). Notably, the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant. Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18) (“The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to the affirmance of the order—were inconsistent with what the Free Exercise Clause requires”). It should find the same here.
The latter inconsistency with a ruling just days ago by the same Court is rather damning.
Update (Doug Mataconis): My comments on the ruling proved to be far too long for a comment thread, so I’ve posted my own analysis of the ruled at this link.
Is criticizing this ruling an attack on “the Rule of Law?”
Mike
I’m not at all surprised, I think presidents do have this power and must have this power. But I think when the orange stain is wiped away we’re going to need to take a good, hard look at presidential powers. When the voters fail as catastrophically as they did in 2016 I think we need start looking to harden the institutions against further such idiocies. Legislatures need to start legislating again.
@Michael Reynolds:
Yep. Stupid, but Constitutional.
@Michael Reynolds: @Hal_10000: I certainly agree that Trump demonstrates even better than Bush and Obama the perils of an overly powerful President. As noted in the OP, I concur with Roberts and the majority that broad latitude is warranted here. But, like the lower court judges, I think the fact that Trump and his spokesmen have been so brazenly obvious that the ban is based on unlawful reasons should render the ban itself unlawful, notwithstanding sham lawful reasons.
“Justice Kennedy’s concurrence says, essentially, that there are some things that are unconstitutional that the Judiciary is not in a place to correct or address. It’s subtext is pretty close to the surface, and seems designed to chastise the Executive while agreeing with the majority that there was not anything the Court could do about it.”
And another check against tyranny crumbles as, like so many Republicans in Congress, Kennedy disapproves but won’t actually do a damn thing. Coward.
@Michael Reynolds:
I think, instead, that we’re seeing evidence here that the courts, which are supposed to be the last line of defense against egregious overreach on the part of the legislature or the executive, are lost as well.
What does it mean to continue to entertain the fictions of democracy and inalienable rights when all three branches of the government charged with defending them are controlled by zealots?
National security scholar Matt Tait, tweeting as @pwnallthethings, put it this way:
To which my immediate response was “Hahahahahahaha…good luck with that.”
How lovely, though hardly surprising, that the conservative majority of SCOTUS respects Christianity but not Islam…
The real lesson here is that Mitch McConnell got away with massive theft, and we all missed the boat when we allowed it to happen. We should have been rioting in the streets; screaming bloody murder, and demanding Garland get a vote. We allowed this to happen; we allowed bigots to win and let millions of Muslims pay the price. Will we learn?
@Daryl and his brother Darryl: Speaking of the turtle from Kentucky…isn’t that nice…
@HarvardLaw92:
Clearly Trump’s ban has nothing to do with national security and everything to do with pandering to his base, but in the absence of a Congress someone has to be able to decide who can and who cannot enter the country. The countries Trump named are indeed exporters of terrorism. His exclusion of Saudi Arabia and Egypt makes his security claim absurd, but I’m still not ready to apply equal protection to people looking for a visa. I think we need a bit more wiggle room than that in the event of a genuine national emergency.
Congress – should it ever escape its eternal slumber – needs to look at passing legislation defining the presidential powers more clearly. I am hopeful that when we return to sanity we can hold hearings, compile data, consider rational approaches to immigration. I grant that’s like hoping for a pony for Christmas.
And Democrats need to define their own stance. We’re not trusted as much as we should be because no one can say with any certainty what our position is. Are we for open borders as accused? Some on the Left are. I’m not and the American people are not, but we need to deprive Republicans of that weapon by making our position clear.
Bishop: “I’m afraid you’ve got a anti-Muslim travel ban, Justice Roberts”; Curate: “Oh, no, my Lord, I assure you that parts of it are excellent!”
I wonder how long it will take Trump to add most Central and South American countries to his travel ban, now that he can do so for vague national security reasons. National Security-It’s Not Just For Tariffs Anymore!
Tyrants ALWAYS invoke security (and provoke fear of the other) to justify what they do. Always.
This ruling does, effectively, overturn Korematsu…so i guess that’s something…
Kinda odd, overturning one wrongly decided and bigoted ruling in another wrongly decided and bigoted ruling.
@Michael Reynolds:
Except presidents explicitly don’t have this power. Article I grants the power to Congress, so the President’s power in this area is not a jot more than that which Congress has delegated to them.
And that delegation currently includes a proscription against determinations based on religion and national origin. Roberts quotes the Immigration and Naturalization Act of 1952, while conveniently ignoring the limitations on Presidential authority added in the Immigration and Naturalization Act of 1965.
Thief Justice Gorsuch.
@Daryl and his brother Darryl:
I don’t see this as a bigoted ruling, so much as a willful dismissal of the bigoted motivation for a policy supported on non-bigoted grounds.
@Stormy Dragon: @HarvardLaw92:
I have no doubt you’re both right as to the law – I am definitely not a lawyer. But this takes us back to the identical issue under Obama: if one branch of government abdicates its responsibility someone still has to make decisions, even stupid ones. We have government by EO because Congress has created a huge power vacuum.
Looking at it purely from the political POV, if the ban is stopped and a Yemeni immigrant sets off a bomb the result will be even more draconian steps with even less opposition. I’d rather let Trump have this and thereby make him responsible for whatever follows. Playing the odds I suspect we’re overdue for some terrorist outrage not committed by the NRA-empowered. If/when that outrage occurs it is likely to be a person tracing his roots back to Chechnya or Iraq – two countries not on the list. In that event the dishonesty of the ban will be clear and the policy failure will be Trump’s.
But short-term politics aside, I really think we need to take some time and look at the immigration issue from a more long-term perspective. We are going to see a lot more population pressure coming from the ME and from Central America and Venezuela. When Merkel announced her million Syrians policy I called it morally admirable but a major mistake that would have very bad consequences, and it did. It was rocket fuel for the far right in Europe. Now Merkel is hanging by a thread, Italy is trending strongly fascist, the UK left the EU driven by nativism, Hungary is lost, Poland is on its way. France and Netherlands had close calls. ‘Populism,’ largely driven by rejection of ME immigration is on the rise, just as nativism has grown stronger in the US and given us Trump.
This cultural panic is a very potent and very dangerous force. If Democrats propose doing nothing, we’ll lose. If we want to forestall Trump’s EO’s we need first to decide on how we propose to cope with large flows of desperate people. You can’t beat something with nothing. The American people by and large are not nativists, but that doesn’t mean they don’t worry about immigration-driven cultural changes. There’s a reasonable middle ground (somewhere) and we should capture that ground rather than just playing critic.
Huh? If you are dismissing bigotry, then you are supporting bigotry. Two weeks ago this same SCOTUS ruled in favor of the bigoted baker based upon far less inflammatory language (from the State Commissioner) than Dennison has used in this case. When Dennison supporters dismiss his bigotry, they are supporting bigotry and are thus being bigots themselves. We need to get away from excusing reprehensible behavior for fear of hurting someones feelings. The woman at the Red Hen got it dead-right.
These words and others uttered by Supreme Leader Kim Jong Trump mean nothing to the so called judges.
They will however motivate his goon squads into action*.
*Disclaimer. I can not predict the future. I am just guessing based on past behavior.
@Daryl and his brother Darryl:
When Democrats failed to show up in 2014 and the GOP got control of the Senate, we slammed the door on Merrick Garland. When young people in their 20’s vote at 30% and elderly Fox News Geezers vote >60%, we give the dipshits power they shouldn’t have. They would love it if we rioted, it would just give them an excuse to jack up the Police State all authoritarians crave. Increasing our vote is how we throw water on these wicked witches.
@James Joyner:
The other thing this court is telling us is that racial bias only exists if it is aimed at so-called christians.
@HarvardLaw92:
If we were to imagine ourselves back in school studying the downfall of some once-great country where the executive was on a power grab, the legislative was out to lunch, and the judiciary was supine, just what would we guess was the next, and probably last, shoe to drop?
@Michael Reynolds: “Are we for open borders as accused? Some on the Left are. I’m not and the American people are not, but we need to deprive Republicans of that weapon by making our position clear.”
Just FYI, even those on the Left who are for open borders — to the extent that any such exist — are actually part of “the American people.” “The American people” are not defined by agreement with your positions.
@Daryl and his brother Darryl:
How is it telling us that?
HL92 actually beat me to this and probably more eloquently but…
So! We now know for sure that the Supremes are infested with, if not totally composed of, partisan hacks. But is this really a change from what we’ve been seeing for some years or is it the degree that has changed?
@Kit:
A fire in the Reichstag …
@Just nutha ignint cracker:
The degree. This court as currently constituted – and I say this as someone who has had a lifelong love affair with SCOTUS – is worthy of Plessy v. Ferguson and Dred Scott. They’ve substituted partisan belief for constitutional truth and fealty to the law.
A court of which Fuller, Brewer, and Brown would be proud.
Except we have no Harlan on the bench this time around.
Everything Trump touches turns to shit in the end, and now he’s corrupted the court. I’m not sure I’ve ever hated him more than I do right now for that.
@HarvardLaw92: There have been lots of rumors in Twitter the last two days that either Kennedy or Thomas will announce retirement.
If Trump replaces Kennedy, your anger may reach new heights.
@teve tory:
No, that will be the point where the decision to renounce – which I have been agonizing over for a while now – will have been made for me.
@HarvardLaw92: FWIW, degree was my inclination, too. As I say you are far more eloquent in stating the case you make–and have better command of the facts to do so. Thank you for your contributions to these discussions.
I also wish peace for you as you consider your future and the decisions you need to make. You have difficult choices–far more so than someone such as I with small assets and no family to be concerned for. I hope your faith will be a boon and support to you as the spiral continues.
Shalom, (I hope that wasn’t too…)