Today, a five-justice majority of the Supreme Court demonstrated unequivocally that it can read and apply the plain language of a federal statute. The only surprise in the Court’s travel-ban ruling is that four dissenting justices tried to find a way around the express will of Congress. The message here is clear: If the American people don’t want the president to exercise a breathtaking degree of control over American immigration policy, then Congress must act. The courts won’t save you from the law.
At issue in today’s decision in Trump v. Hawaii was the third version of Trump’s executive order limiting entry into the United States by foreign nationals of eight nations: Chad, Iran, Somalia, Libya, North Korea, Syria, Venezuela, and Yemen. The administration determined that each of these countries failed to provide sufficient information about security risks (or presented additional risk factors). The “ban” — despite its name — was not a complete ban for any country. At the very least, it exempted lawful permanent residents and nationals granted asylum, and it provided for case-by-case waivers.
Standing in support of the Trump administration was a single, crystal-clear statutory provision — one passed by Congress years ago — that grants the president enormous power to exclude individuals from the United States. Section 212(f) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1182(f), reads:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
As Justice Roberts wrote, the statute “exudes deference to the President in every clause.” It trusts the president to decide whose entry to suspend, under what conditions, and for how long. The only real statutory limitation on his power — and it’s not much of a limitation — is that the president make a “finding” to justify his proclamation. These findings are plain from the face of the order itself.
Moreover, as Justice Roberts explained in detail, there was no conflict with other federal statutes, including federal statutes prohibiting national-origin discrimination in immigrant-visa determinations. Yet even the grant of a visa doesn’t guarantee entry. Here’s Roberts again:
As every visa application explains, a visa does not entitle an alien to enter the United States “if, upon arrival,” an immigration officer determines that the applicant is “inadmissible under this chapter, or any other provision of law — including Section 1182(f)”
He also notes that “common sense and historical practice” have confirmed that presidents have the authority to suspend entry from foreign nations. President Reagan prohibited entry by Cuban nationals. President Carter denied visas to Iranian nationals. If the president couldn’t consider national origin in its Section 1182(f) determinations, Roberts adds, then presidents wouldn’t “be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war.”
And what of the religious-animus argument? Did the president’s campaign statements promising a Muslim ban render his not-Muslim ban unconstitutional?
Here, Roberts reminds us of the critical fact that foreign nationals have “no constitutional right to entry” into the United States. When an American citizen claims that his or her own constitutional rights are burdened by the denial of a visa to someone else, the court’s inquiry is “circumscribed.” The question is whether the president’s order is supported by “facially legitimate and bona fide” reasons. This is particularly true when admission and immigration “overlap” with national security.
In other words, the court will exercise extreme caution before “inhibit[ing] the flexibility” of the president “to respond to changing world conditions.” The question, then, was merely whether there was a “rational basis” (the most permissive standard of review) for Trump’s travel ban, a test it passed rather easily.
Finally, Justice Roberts perhaps inadvertently intervened into our current civility debate. He explicitly called out the dissent’s comparison of Trump’s travel ban to Japanese internment:
Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever 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. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President — the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.
Justice Roberts’s statement above is justice-speak for “chill out.” The travel ban wasn’t a Muslim ban. It didn’t target people who are lawfully in this country. Its scope was limited to nations that have immense, undeniable problems with jihad, lawlessness, or hostility against the United States. Then, for good measure, the Court at long last overruled Korematsu.
The only surprising thing is that four justices looked at the law and ruled against the Trump administration.
Critics are already decrying the decision, talking about how in the “real world,” rather than the “debating parlor” of the Supreme Court, it’s motivated by nothing but anti-Muslim animus. No one can doubt Trump’s statements were absurd, extreme, and malicious. But the policy here is focused and targeted, and it leaves untouched the vast majority of Muslim believers across the world. Under the critics’ preferred doctrine, this president and future presidents would be hamstrung in promulgating facially neutral policies aimed even at enemy nations if a collection of justices subjectively determined that his or her heart was not right.
Indeed, in evaluating this ruling, the only surprising thing is that four justices looked at the law and ruled against the Trump administration. This is almost entirely the fruit of Trump’s poisonous rhetoric, and he should learn a lesson that intemperate and impulsive speech can imperil the president’s lawful powers. In the meantime, however, a majority of the court preserved the legal regime created by Congress. It was right to do so.