Trump v. Hawaii: SCOTUS Upholds the Travel Ban

Yesterday, the Supreme Court decided Trump v. Hawaii, the challenge to President Trump's third travel ban proclamation, issued in September 2017.  The plaintiff Muslims and the State of Hawaii had argued (i) that the president has limited authority under the law to restrict foreign immigration and (ii) that the September proclamation violated the Establishment Clause of the First Amendment by discriminating against Muslims.

The Court split along ideological lines, with the five conservatives finding in favor of the ban and the four liberals dissenting.  Chief Justice Roberts wrote the majority opinion, and, as is typical, his decision leaves much to be desired, even if it ultimately reaches the correct result.

First, Chief Justice Roberts addressed the scope of the president's authority to restrict the entry of aliens under 8 USC §1182(f).  Contrary to the plaintiffs' silly arguments that the president's authority was limited, the Court noted that the "plain language" of the statute "exudes deference" and gives the president "broad authority" and "ample power." 

What's more, even though the statute requires the president to "make a finding" that entry of certain aliens "would be detrimental" to the country, the Court noted that it "is questionable" whether he has to justify his finding to the courts.  Rejecting the plaintiffs' more nuanced statutory arguments, the Court concluded that President Trump has broad and sweeping authority to ban classes of aliens from entry into the United States.

Next, the Court looked at the plaintiffs' First Amendment challenge, based on allegations that President Trump is biased against Muslims.  First, the Court determined that there was standing to bring such a challenge because the plaintiffs had been "separated from certain relatives who seek to enter the country."  The Court did not answer the question whether the absurd "spiritual and dignitary" wrongs alleged by the plaintiffs are sufficient to confer standing.

The Court then recited a list of alleged anti-Muslim statements made by President Trump.  Correctly, the Court noted that "the issue before us is not whether to denounce the statements," but whether the proclamation is "neutral on its face."  The Court limited its review to whether there was a "facially legitimate and bona fide reason" for the proclamation and concluded that clearly, there was.

Chief Justice Roberts should have stopped there.  However, he continued to wrongly "assume that we may look behind the face of the Proclamation to the extent of applying rational basis review[.] ... As a result, we may consider plaintiffs' extrinsic evidence."  On the contrary, as we had argued in our amicus brief, it is not up to the courts to delve into the "heart of hearts" of the president any more than it is up to the president to question the motivations underlying judges' decisions.  Ultimately, however, Chief Justice Roberts concluded that President Trump's proclamation met the rational basis test – and was easily attributable to independent justifications that do not involve animus against Muslims.

In a short concurring opinion, Justice Kennedy wrote to chastise President Trump for his allegedly anti-Muslim comments.  Justice Kennedy claimed that sometimes courts may look behind official decisions for animus; however, in matters of foreign affairs such as this, they may not.  Nevertheless, Justice Kennedy expressed his personal belief that "[i]t is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs."

Justice Thomas also concurred to raise an interesting issue.  He chastised the lower courts' issuance of "universal" or "nationwide" injunctions in this case, noting that lower courts "have begun imposing universal injunctions without considering their authority to grant such sweeping relief.  These injunctions are beginning to take a toll on the federal court system – preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch."  Justice Thomas concluded that "for most of our history, courts understood judicial power as fundamentally the power to render judgments in individual cases.  They did not believe that courts could make federal policy."

Justice Breyer and Justice Kagan dissented.  In an opinion devoid of any common sense, Justice Breyer concluded that since the federal government allegedly has permitted only a very few aliens from prohibited countries to enter under the proclamation's exemptions and waivers, it must be the case that President Trump's animus against Muslims was behind its issuance.  In short, Justice Breyer's dissent leaves the reader scratching his head.

Finally, Justice Sotomayor, in a dissent joined by Justice Ginsburg, claimed that the proclamation has not been sufficiently "cleansed" from "the appearance of discrimination" against Muslims that allegedly arose from President Trump's campaign statements.  Contrary to the majority, Justices Sotomayor and Ginsburg have no problem delving into the president's "heart of hearts," imputing nefarious intent to a proclamation that "a reasonable observer would view as an unrelenting attack on the Muslim religion and its followers."  Justice Sotomayor discounts as "window dressing" the fact that the most recent proclamation was based on recommendations of several department heads, after a worldwide review of security concerns.  And they discount the inclusion of North Korea and Venezuela (non-Muslim countries) in the proclamation as "entirely symbolic."  In the view of these justices, it apparently is impossible for President Trump to ever take any action that affects Muslims.  Justices Sotomayor and Ginsburg's opinion reads like a mirror image of the plaintiffs' briefs in this case.

In an interesting (but entirely unrelated) move, Chief Justice Roberts's majority opinion notes that the dissent likens President Trump's alien travel ban to the nation's internment of Japanese Americans during World War II and the Court's approval in the infamous Korematsu opinion.  Chief Justice Roberts wrote that "[w]hatever 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.  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.'"  So finally, after more than seventy years, Korematsu has been overturned.

Robert J. Olson & Herbert W. Titus, of William J. Olson, P.C., have filed eight amicus briefs in support of President Trump's efforts to limit travelers to the United States from countries with predominantly Muslim populations.  The most recent of these was filed in this case on February 28, 2018.

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