Trump v. Hawaii

The Supreme Court has upheld President Trump’s so-called “Muslim ban” on a 5-4 vote. From Amy Howe at SCOTUSBlog:

Under the Supreme Court’s cases, Roberts suggested, the justices would normally only look at whether the order is neutral on its face – that is, whether it applies to all religions equally. But even if they look beyond the text of the September 2017 order at other evidence of the president’s intent, Roberts continued, the order still survives because it is directly based on a legitimate purpose: “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Roberts acknowledged that five of the seven countries currently covered by the order have Muslim-majority populations. But “that fact alone,” he suggested, “does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.” Roberts dismissed the state’s contention that the September 2017 order applies too broadly and “does little to serve national security interests,” responding that courts should not substitute their own judgment for that of the executive branch on national-security matters, which he characterized as “delicate,” “complex,” and involving “large elements of prophecy.”

Roberts cited three specific features of the September 2017 order that, in his view, further buttress the government’s claim that the order was intended to serve genuine national-security interests. First, he emphasized, three Muslim-majority countries covered by the president’s January 2017 order – Iraq, Sudan and Chad – are no longer covered by the restrictions, and the September 2017 order contains exceptions that would allow some nationals from almost all of the countries covered by the order to come to the United States. What’s more, Roberts added, the September 2017 order also contains a waiver provision that allows nationals from covered countries to travel to the United States in certain circumstances, such as to obtain urgent medical care. When all of these circumstances are considered together, Roberts concluded, the government has demonstrated “a sufficient national security justification” for the September 2017 order to survive. The district court’s injunction that temporarily blocked the government from enforcing the order is now reversed, and the case will go back to the lower courts, Roberts indicated, “for such further proceedings as may be appropriate.”

IMO this was a clear case of usurpation on the part of the lower courts, an issue touched on by Justice Clarence Thomas in his concurring opinion, and I wish they had been rebuked more soundly. They were called on to rule on the law, not on whether they approved of Trump, and their rulings should have been limited to the law.

My own view was that the “Muslim ban”, in reality a ban on immigration of citizens of just five countries with majority Muslim populations (Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen)—all conflict areas was ill-considered but within the president’s powers and that’s what the court found, too. “Muslim ban” is good marketing but factually incorrect. Those aren’t even the largest countries with Muslim majorities (Indonesia, Pakistan, and Egypt were not included) and it extended to all citizens of those countries, not just Muslims. And there are more Muslims in India than there are in all of the banned countries put together. So, hardly a “Muslim ban”.

Update

From Jonathan Turley at The Hill:

The Supreme Court ruling in Trump v. Hawaii today was more than a predictable reversal of the 9th Circuit appeals court in its dubious ruling that the travel ban was unconstitutional. As some of us noted from the outset of this litigation, the precedent heavily favored President Trump.

What was unprecedented was the degree to which courts relied on campaign statements and tweets by Trump to rule that the entry limits were based on religious animus. The ruling properly returns the courts, and others, to basic principles of legal process. Call it “The Red Hen moment” for the courts, where judges, appalled by Trump’s inflammatory and reckless comments against Muslims, refused to extend him the same deference shown to predecessors like former President Obama. The response from judges, however, seemed more visceral than analytical in ignoring the nondiscriminatory rationales cited by agencies for the policy.

Exactly.

If you’re going to rule based not on the law but on the campaign statements of the president who signed the law, you’ve raised the stakes on getting control of the courts too far. Simply that you think the president is a bad guy does not mean that everything he does is illegal.