Sunday, July 29, 2018

The Travel Ban Decision

The shouting has largely subsided. The Court's ruling has settled in, and the outward manifestations of euphoria and despair have largely moved on to other issues. Despite what has been said--both leading up to the decision and immediately thereafter--it was neither one of the very best or very worst decisions in recent memory. Not even among this past term's collection of 5-4 rulings.
[Disclosure: I do think that this case was close on the legal validity of "Travel Ban #3." That being said, I do not think it's at all close whether President Trump's language and behavior on this matter have been disgraceful, dangerous, and contrary to basic American constitutional principles. I would have voted with the dissenters.]

As the world knows, the Supreme Court upheld the 3rd version of President Trump's so-called "travel ban." After several courts had invalidated the first and second versions, a third one was drafted. This executive order--Proclamation No. 9645 (as later amended by Proclamation No. 9723)--suspended the entry into this country of nationals from seven foreign nations. Five of the seven mostly-Muslim countries from the original executive order remained on the list; North Korea and Venezuela were then added.

In a 5-4 decision, the Court ruled that the Proclamation was within the "extraordinary" authority given to the President under the Immigration an Nationality Act, specifically, §1182(f).

Let's get a sense of the majority opinion, authored by Chief Justice John Roberts, and the main dissent by Justice Sonia Sotomayor. The Chief Justice's opinion for the Court included the following:
A “total and complete shutdown of Muslims entering the United States” is needed.
“Islam hates us.”
The United States is “having problems with Muslims coming into the country."
Europe has instituted plans to “ban Muslim immigration…You know my plans. All along, I’ve been proven to be right.”
The first executive order was a needed “Muslim ban."
The second executive order, regrettably, is “watered down."
The “travel ban . . . should be far larger, tougher, and more specific [but] stupidly that would not be politically correct.”
Justice Sotomayor's dissenting opinion included these lines:
A "total and complete shutdown of Muslims entering the United States" is needed. 
"There is great hatred towards Americans by large segments of the Muslim population."
"They believe that "violence against Americans here in the United States is justified as a part of the global jihad." 
"Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts." 
"It is obvious to anybody the hatred is beyond comprehension." 
"Our country cannot be the victims of the horrendous attacks by people that believe only in Jihad." 
"Islam hates us." 
"We can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” 
“We’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” 
Muslims “do not respect us at all.” 
“You know my plans [to“ban Muslim immigration”]. All along, I’ve proven to be right.” 
"The lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” 
“Study what General Pershing . . . did to terrorists when caught [i.e., the apparently apocryphal story about General Pershing’s massacre of Muslims in the Philippines]. There was no more Radical Islamic Terror for 35 years!” 
Of course, both the Chief Justice and Justice Sotomayor were quoting Donald Trump, while he was a candidate and after his election. Also, of course, neither one of them were endorsing a single word. But then, what to make of those words and the sentiments that they expressed when assessing the legal validity of the travel ban?

For all 4 dissenting Justices, the travel ban was based on little more than Donald Trump's clearly manifested bigotry against Muslims. The President's hostility toward a religion violated fundamental American constitutional traditions and principles and, as such, rendered the resulting travel ban invalid under the 1st Amendment. That was one side of the controversy. The one-vote short-of-winning side.

The 5-vote winning side emphasized that the power vested in the office of the President with regard to immigration and other travel into this country is "extraordinary." First, however, Chief Justice Roberts dealt with Donald Trump's anti-Muslim outbursts and other fits of fury. He didn't try to ignore them, and he left no doubt that he found them shameful.

Addressing presidential authority and how that authority has been nobly used in the past, the Chief Justice remarked:
Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.” President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.” And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike—to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.” 
Then the Chief Justices added:
Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days—performed unevenly in living up to those inspiring words.
Hmmmm, "unevenly." Roberts then went further, albeit implicitly:
But the issue before us is not whether to denounce [Trump's] statements.
The denunciation to be inferred could hardly be missed. Still, explaining his majority's view of the case, the Chief Justice continued:
We must consider not only the statements of a particular President [as in the current one], but also the authority of the Presidency itself.
Roberts then outlined the reasons for upholding travel ban #3:
  • it does have some legitimate basis in national security interests
  • religion is nowhere mentioned
  • only a small fraction of the world’s Muslim population is covered
  • it covers only countries that Congress and prior administrations designated as national security risks
  • it is the result of a comprehensive review process by multiple Cabinet agencies
For the majority, those factors placed "Travel Ban #3" well within the previously emphasized "extraordinary" constitutional and statutory authority the President has over such matters. For the four dissenters, however, the clear religious hostility motivating the travel ban undermined any ostensibly legitimate purposes. As Justice Sotomayor summed up the dissenters' view at the outset of her opinion:
Based on the evidence in the record [i.e., Donald Trump's language and behavior outlined by both the majority and dissent], a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. 
So, the extremely broad power given to the office of the President, by the Constitution and by legislation, versus the unanimously acknowledged recurrent manifestations of religious bigotry by a particular president. That was the question. It was a close one. And one vote made the difference.

Now, for one final observation. What about that 1-vote difference? That 5-4 vote? All 5 Republicans on one side. All 4 Democrats on the other. Come on! What are the mathematical odds that such a partisan split in the vote could result if this case were actually considered in a neutral, detached, non-biased, non-partisan manner by each of the nine Justices? To pose the question is to answer it.

Not a single Republican Justice saw merit in the Democratic Justices' position? And vice-versa? Regardless of one's personal view of this case, it seems impossible to deny that the outcome in this case was the result of partisanship more than any independent, impartial judicial review. Ugh!--again for this current Court.

Okay, allow me one additional "final" observation. In her dissenting opinion, Justice Sotomayor compared the Court's decision to Korematsu v. United States (1944), where the Court had upheld the internment of Japanese-Americans during World War II. Naturally, Chief Justice Roberts disputed that comparison in his majority opinion.

But the Chief Justice then took "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.” (Quoting from the dissenting opinion in that case of [Albany Law School's favorite son] Justice Robert H. Jackson.)