Dear Commons Community,
Yesterday, the U.S. Supreme Court voted to uphold President Trump’s travel ban, which indefinitely bars most people from five majority-Muslim countries, and certain citizens from two other countries, from entering the United States. The conservative majority on the Court said the ban, Mr. Trump’s third version after the first two were struck down by lower federal courts, was a lawful exercise of presidential authority. They reached this conclusion despite Mr. Trump’s best efforts to convince them, and the country, that its real purpose was to discriminate on the basis of religion. A New York Times editorial this morning called this decision “bigoted and feckless.”
However, a number of other observers including Peter Schuck, professor emeritus of law at Yale University, are of the opinion that the Court ruled correctly in this matter. While Professor Shuck concedes that “Mr. Trump is a man who proudly parades his many egregious biases, especially against immigrants in general and Muslims in particular” the Court’s Decision emphasized the importance of distinguishing between the “statements of a particular President” and the “authority of the Presidency itself” — including Section 212(f). Below is Professor Schuck’s analysis. It is worth a read.
The Court Ruled Correctly on the Travel Ban
By Peter H. Schuck
In some respects, the Supreme Court’s decision on Tuesday rejecting challenges to President Trump’s travel ban was highly predictable. Mr. Trump issued his series of executive orders under the authority of a breathtakingly broad statute — specifically, Section 212(f) of the Immigration and Nationality Act — a provision designed to forestall national security threats. And he issued it for two plausible reasons: the proliferation of international terrorism threats against the United States and the seeming inadequacy of overseas screening (“vetting”) of would-be travelers to the United States by some source countries. Given this context, the decision has all the surprise of a Golden State Warriors victory in the N.B.A. finals.
Why, then, did the decision draw four dissenters? Here too the answer is quite straightforward. Mr. Trump is a man who proudly parades his many egregious biases, especially against immigrants in general and Muslims in particular. His campaign was replete with vile stereotypes and schoolyard bullying of minorities of all sorts, conduct that has only worsened since the election. The dissenters took the president at his anti-Muslim word and found support in our long legal tradition, encoded in the First Amendment, protecting religious minorities from overreaching majorities.
The majority justices, no less committed to the amendment’s prohibition against government discrimination against particular religions, nevertheless emphasized the importance of distinguishing between the “statements of a particular President” and the “authority of the Presidency itself” — including Section 212(f).
This distinction — highlighting the principle of deference to the presidency in the foreign affairs and national security area — provides the key to the court’s decision; all nine justices accepted this principle. The question actually dividing them was how much deference Mr. Trump could claim by reason of his foreign-affairs and national-security powers under the Constitution and Section 212(f).
The challengers maintained that the court could not, and should not, simply accept the almost reflexive presidential claim to deference in this particular area. Instead, they argued, the court should assess Mr. Trump’s action with the skeptical, probing “strict scrutiny” standard traditionally applied to religious discriminations by government.
The majority emphatically disagreed. Invoking the familiar deference principle commonly applied by the court when it comes to executive actions in the name of national security, it decided to demand only a “rational basis” for the executive order (indeed, the majority said, it could have applied an even more relaxed “facially legitimate” standard of review). It insisted, rightly in my view, on assessing the order on its face rather than probing Mr. Trump’s anti-Muslim motives (as evidenced by his rhetoric) and in trying to parse the relative weight that they played in his decision as compared with his legitimate national security concerns.
With this move, the court’s conclusion was inevitable, resting on the many policy reasons and distinctions adduced in the order. Most of the rest of the court’s opinion was mere window dressing, with a few exceptions.
First, the majority had to deal with another provision of the Immigration and Nationality Act barring religious and other types of discrimination in the issuance of visas. Here, the court plausibly read this provision to apply only to visas, not to admissions per se — especially (but not only) in light of its broad interpretation of Section 212(f).
The other noteworthy addition — not central to its analysis — was the majority’s welcome, justifiably harsh condemnation of the Supreme Court’s notorious 1944 Korematsu decision, which had upheld the wartime internment of American citizens of Japanese descent. The dissenters used that precedent to try to impugn the majority’s reasoning in the present case, indeed the very morality of its decision.
The fact that the court ruled correctly, however, does not mean that the status quo is acceptable. The most fearful aspect of the court’s decision is already evident in Mr. Trump’s immediate, triumphalist response to it. The decision will certainly embolden him in his claims of vast presidential power and indifference to the rule of law, whether on immigration or in other policy areas.
All the more reason for Congress to confront and discipline those claims. It should promptly review Section 212(f) with a view toward prudently constraining any president’s power to bar broad classes of aliens whenever he deems it necessary to protect the national interest. At the very least, he should have to make specific factual and national security findings and provide his supporting evidence in as much detail as possible so that the public can assess his actions. Congress should also consider requiring a post-implementation inquiry into the actions and how the administration is implementing them on the ground.
The risk and temptation of presidents to use their power to overreach and ignore principles of justice is a constant threat to our democracy. This threat is especially grave when the policy objective is praiseworthy, as President Barack Obama’s unilateral, procedurally deficient Dreamers order was. Although Mr. Trump poses this threat most brazenly and in the extreme, it is by no means confined to him. Indeed, his precedent will embolden his successors.