In Trump v. Hawaii, the 5-4 majority reached the right result in upholding the Trump administration’s use of delegated power under the immigration laws to ban the immigration of aliens from countries deemed threats to the national security. That Congress had granted the president ample power was a conclusion easy to reach, despite the claims of liberals who generally love such broad transfers of power to the administrative state when the subject is environmental protection or market regulation.
But the most important part of the opinion, and its critical implication for the future of the Trump administration (and indeed, all future administrations) was its rejection of the claim that Trump had violated the Constitution because of his personal bias against Muslims. I had raised doubts about this problem in earlier versions of the travel ban, which had applied only to Muslim countries and had granted an exception for Christians. But more professional hands updated the travel ban, and it now reflects no unconstitutional religious or ethnic bias on its face.
Nevertheless, Trump opponents (which, it has to be said, included the lower federal courts in Hawaii and California) claimed that the president’s personal state of mind was a) subject to judicial inquiry; and b) could be deduced from his statements, tweets, and the like from both before and after the 2016 election. But the Court correctly states that if the order is facially legal and can be justified on any legitimate national-security basis, the federal judiciary should not block it. “Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy.”
To have allowed such an aggressive form of judicial review would have paralyzed the administration and future presidents by subjecting to challenge virtually any presidential decision, even if facially legal, based on their hidden state of mind. While Trump critics may oppose his immigration policies, as I generally do, the Court reminds us all that the proper forum to fight it out remains the political process — elections for Congress, which can always retract its delegation of authority, or the president, who can issue new orders — not the courtroom.






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