Reading through the Supreme Court’s decision in Trump v. Hawaii – the Muslim travel ban case – is like drifting off to sleep on an ordinary commuter train headed for home and then being jolted awake when it shudders to a stop, only to discover that you’ve arrived in Mordor.
It all starts off so reasonably as the train gets under way. Chief Justice John Roberts, writing for the majority, sets out the task before the Court: to decide whether President Trump had the legal authority to issue Presidential Proclamation #9645 and whether its terms violate the Establishment Clause of the First Amendment.
He takes us through the history of the Proclamation — #9645 is the third version – and the various legal challenges to it.
Next there’s a quick stop at Justiciable Station just to make sure the Court actually has the authority to decide this case. (The Supreme Court gets to decide whether it gets to decide.) Not surprisingly, it decides that it does indeed have the authority, or rather it assumes it has the authority, and presses on.
Now we come to the first major uphill pull, the question of whether the President had the legal authority to issue Proclamation #9645. That authority, if it exists, comes from section 1182 of the Immigration and Nationality Act (INA). The Court examines the text of this section in minute detail and concludes, not surprisingly, that the terms of the Proclamation are well within the authority granted to the President.
We’re at full speed now as the Court briskly dispenses with another challenge, that the Proclamation violates section 1152 of the INA prohibiting discrimination in the issuance of entry visas. Irrelevant, cries the Court, this Proclamation concerns eligibility for admission which is a “different sphere” than visa issuance.
The train slows for another brief stop, this time at Standing Station, to determine whether the plaintiffs in this case are eligible — have standing — to bring a constitutional challenge before the Court. You can’t just show up at the Supreme Court and challenge a law because you don’t like it, you have to demonstrate a specific and personal harm under the Constitution. The plaintiffs show their tickets to the conductor and are not booted off the train.
Picking up speed once more, we come to the final question of whether the Proclamation violates the Establishment Clause of the First Amendment. In other words, does it discriminate against Muslims? The Court reviews numerous blatantly anti-Muslim statements uttered by candidate and then President Trump, including his infamous call for a
“… total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” [Opinion of the Court, p. 27]
The Court says its job is to not denounce these statements but rather to decide how to weigh them against a “neutral” Proclamation that falls within the core of the President’s responsibility.
It says that as long as there’s a good reason for the policy, what it calls a “rational basis”, it will uphold the policy regardless of any “extrinsic” statements. At this point you can hear the heavy thunk! of a railroad track switch and the train veers off in an unexpected direction.
In short order the Court finds that the Proclamation does have a rational basis: national security. It reverses the injunction granted by the lower courts and hands the case back for further proceedings. As the train squeals to a stop with a final lingering hiss of the brakes, the Proclamation goes into full effect.
The United States Supreme Court has just upheld President Trump’s travel ban.
You look out the window in terror. You don’t recognize this place. How the hell did we end up here?
* * *
Let’s go back and take a more detailed look at some of the key points in the case.
Proclamation #9645 is the third version of a ban on travel to the US affecting people from predominantly Muslim countries. The first two versions were challenged in court and then revoked and revised by the Administration. 9645 restricts entry into the United States by persons from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen, ostensibly to prevent threats to public safety. (Chad was later removed from the list because it improved its identity management practices.) It exempts lawful permanent residents (Green Card holders) and people from these countries who have been granted asylum. There is also a waiver program under which foreign nationals can request an exemption if they meet certain conditions.
The suit challenging the Proclamation was brought by the State of Hawaii, three individuals, and the Muslim Association of Hawaii. These plaintiffs claim the Proclamation violates the INA and the Establishment Clause of the First Amendment because it is based on anti-Muslim bias rather than any real concerns for national security. The three individual plaintiffs claim harm from this Proclamation by being separated indefinitely from family members who live in the affected countries. The Court acknowledges the harm and grants them standing.
So there were two issues for the Court to decide in this case:
- Does the Immigration and Nationality Act give the President the legal authority needed to issue the sweeping travel bans contained in Proclamation #9645?
- Do the terms of the Proclamation violate the Establishment Clause of the First Amendment, that is, do they infringe on the Constitution’s guarantee of religious freedom?
In my view there was never much doubt about the first question. The text of the Act is pretty clear: it does grant the President broad authority and flexibility to determine who is granted admission into the United States and under what terms and conditions. Other Presidents have issued similar travel bans; President Carter issued one banning visas for Iranian nationals, and President Reagan blocked immigration to the US by all Cuban nationals.
The heart of this case, then, and the real controversy around it, lies in the second question.
The First Amendment to the Constitution states,
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The first part of the Amendment, “Congress shall make no law respecting an establishment of religion,” is known as the Establishment Clause. It prohibits the government from establishing an official religion for the United States, from giving preference to one religion over another, and even from giving preference to religion over non-religion.
The plaintiffs allege that the Proclamation unfairly discriminates against Muslims in direct violation of the Establishment Clause. Donald Trump’s numerous anti-Muslim statements, as a candidate and as President, form the basis for their lawsuit. Indeed, it’s impossible to read those statements and not believe that the Proclamation was influenced and motivated by the President’s obvious hostility, or animus, towards Islam. The legal question is whether or not that animus is sufficient grounds to invalidate the Proclamation.
The Court extensively reviews Trump’s anti-Muslim statements but then decides that such “extrinsic evidence” will be ignored if there’s a reasonable justification for the policy.
“As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” [Opinion of the Court, p. 32]
This is the most important sentence in the entire decision. In fact, you can stop reading right here. The Court is saying loudly and clearly that it will not decide against the President, despite all his hateful rhetoric, if there’s even the slightest justification for the policy. It’s over, folks. It’s a walk-off grand slam for Trump.
Why? Because the justification provided by the Government, and accepted blindly by the Court is national security, the modern scoundrel’s last refuge.
A few pages later, the Court delivers the final blow.
“Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review.” [Opinion of the Court, p. 38]
This is the Court saying, in effect, “Well the Government told us this is all about national security and we believe them so we’re going to give the President a pass.”
You have to wonder if there’s anything Trump could say that would convince the Court of anti-religious bias infringing on the Constitution. Turns out they were quite clear: no there is not. They didn’t just give him a pass, they gave him a blank check. He can, and will, continue to spew and tweet bigoted vitriol for the rest of his administration with complete impunity. All he has to do is sprinkle a little national security pixie dust here and there the Supreme Court will roll over in supine deference.
Justice Anthony Kennedy, who announced his retirement just a few days after this decision was delivered, wrote a brief opinion supporting the majority. In it he urges elected officials to adhere to First Amendment guarantees even in matters like foreign affairs where the Courts have limited power to scrutinize or intervene. He ends with,
“An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.” [Kennedy dissent, p. 2]
Noble sentiment. Too bad he didn’t do more to preserve and protect those liberties here. If that was his parting gift to the nation then good riddance, I say.
* * *
Defeating the travel ban Proclamation was always going to be an uphill battle. The Supreme Court has a long history of deferring to the Executive branch in matters of foreign affairs and national security.
So it’s not surprising the Court ruled the way it did. Disappointing, but not surprising.
But to understand just how bad this decision is, we need to look at two other cases.
The Masterpiece case concerned a Colorado bakery whose owner refused to bake a wedding cake for a gay couple because he opposed same-sex marriage on religious grounds. The couple complained to the Colorado Civil Rights Commission claiming discrimination on the basis of sexual orientation. The Commission decided in favor of the couple and the lower courts confirmed that decision. Now the Supreme Court had to decide whether the Commission itself violated the Constitution.
The Court ruled that the baker’s constitutional right to freedom of religion had been infringed because some members of the Colorado Civil Rights Commission made comments that showed anti-religious bias during hearings in his case. This decision was handed down just two week prior to the decision in Trump v. Hawaii. The glaring double standard was not lost on Justice Sotomayor who wrote in her dissenting opinion,
“Unlike in Masterpiece, where the majority considered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, … the majority here completely sets aside the President’s charged statements about Muslims as irrelevant.” [Sotomayor dissent, p. 26]
You might expect the Court to hold the President of the United States to the same standard as it holds members of a state-level commission, if not higher. Apparently not. Maybe the Court would have decided differently if national security had been a factor in baking wedding cakes.
Even more frightening is the case of Fred Korematsu. During World War II, the US government ordered the forced removal of about 120,000 people of Japanese descent, including roughly 70,000 American citizens from the west coast of the United States to inland internment camps. Korematsu, a native born American citizen challenged the removal order on the grounds that it discriminated against him solely on the basis of race. He lost his case in the lower courts.
In 1944, in what is widely regarded as one of the worst decisions in its history, the Supreme Court upheld the lower court decisions on essentially the same grounds as those here in Trump v. Hawaii, national security. Today’s Court chose Trump v. Hawaii as the occasion to finally overturn the decision in Korematsu, calling it “gravely wrong the day it was decided.” Yet the Court maintained that Korematsu is unrelated to 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.” [Opinion of the Court, p. 28]
But of course it’s the same flawed reasoning and the same unquestioning deference to the Executive branch that underlies both decisions, as Justice Sotomayor points out:
“This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another.” [Sotomayor dissent, p. 28]
The decision in Trump v. Hawaii fills me with dread. The Supreme Court is heading down the same tracks and making the same mistakes it did in Korematsu. And it may get worse if more conservative-leaning judges are appointed to the Court. You can easily imagine more cases like this making their way through the courts in the coming years, perhaps involving detention camps for undocumented immigrants and asylum seekers, for example. Anyone expecting the Supreme Court to act as a reliable check on government action in cases like this is going to be disappointed.
Opinion: How the Supreme Court Replaced One Injustice with Another by Karen Korematsu (daughter of Fred Korematsu)
A primer I wrote a few years ago on reading through Supreme Court decisions