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Law & the Courts

Trump’s Revised Travel Ban Survives

Protesters rally outside the U.S. Supreme Court, as the court justices consider a case regarding presidential powers relating to the legality of President Donald Trump’s latest travel ban. (Yuri Gripas/Reuters)

The Supreme Court this morning upheld the Trump “travel ban” (or, depending on your point of view, “Muslim ban”) in a 5-4 decision (Trump v. Hawaii) written by Chief Justice Roberts. Though the decision divided the Court along ideological lines, it is not actually that surprising, given the Court’s previous decisions in this area going back many years. As I have written previously (see here, here, here, and here), the travel ban was not a good idea or particularly well thought-out, but it is within the traditionally broad powers of the federal government to exclude foreigners from the country for just about any reason. Today’s decision is some vindication for Trump as well as for those of us who argued that the critics of the order’s legality were ignoring the Supreme Court’s precedents in this area. But it is not the sweeping ruling that some might think. It gave weight to the Trump’s Administration having backed down and revised the order twice after early legal challenges, suggesting that the Court might not have been quite so certain about the original order. And the Court very clearly focused the decision on the uniquely broad power to exclude foreigners – it does not give the president power to engage in religious or other discrimination involving citizens, or indeed anyone else present within the country.

As a reminder: the federal government can legally take an action if (1) it has been given the power and (2) that power isn’t restricted by someone’s rights. If the power is one that at least partly belongs to Congress, the president can exercise it only if Congress passes a law giving him the power to enforce it. And the courts can stop an action that exceeds either of these only if (3) someone has standing to challenge the action.

Taking the third point first: the law is very well-settled that foreigners have no Constitutional right whatsoever to enter the United States; they can use the courts to sue for entry only if a Congressional statute has given them that right. Nobody in Trump v. Hawaii argued otherwise, which is why the Court did not even ask whether people restricted from traveling to the U.S. had their rights violated: there are no legal rights to violate. That’s why there was nobody arguing that the case involved a violation of religious liberty, for example. Instead, family members of people excluded by the ban argued that the ban violated the Establishment Clause of the First Amendment – that it was legally the equivalent of the government setting up a state church to bar entry by refugees and others seeking to travel here from Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The Court agreed that the family members had standing to sue, and went on to find that Congress had long ago given the president broad authority under 8 U. S. C. §1182(f), which states:

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 the Court noted, past presidents such as Obama, Clinton and Reagan had exercised this authority on 43 different occasions, often without offering much explanation justifying these determinations. Congress could change that law, or Trump or a future president could revise the travel ban, but until then, this is legally the president’s decision to make.

So, that left the question of whether this power was limited by the Establishment Clause. But as Hawaii’s lawyers conceded, the travel ban order draws no religious distinctions (as revised to respond to previous legal challenges, it even removed the special consideration the first order had given to Syrian Christians facing genocide), covering only a handful of majority-Muslim countries (drawn originally from an Obama Administration list of countries not deserving of favorable visa procedures under the “Visa Waiver” program) and including non-Muslim countries like North Korea and Venezuela. That made the court challenge even narrower: the Court was asked to decide that statements by Trump on the campaign trail and in office about wanting a “Muslim ban” meant that the order was tainted by religiously discriminatory motives from the beginning.

What decided the case was the highly deferential standard of review that applies in this context. In Kleindienst v. Mandel, decided in 1972 in the heyday of the Court’s liberal era, the Court allowed even outright discrimination against a foreigner’s free speech so long as the government had some arguable basis for its decision:

For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” [and which] may implicate “relations with foreign powers”…

[A]lthough foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. In Kleindienst v. Mandel, …we limited our review to whether the Executive gave a “facially legitimate and bona fide” reason for its action…Given the authority of the political branches over admission, we held that “when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification” against the asserted constitutional interests of U. S.
citizens.

The rational basis standard (which applies in a bunch of types of distinctions under the Equal Protection Clause) is extremely easy for the government to meet, and very few government actions fail it. That standard made this very different from cases involving Americans’ rights to be free of discrimination against their free speech or religious rights or from racial discrimination. A blanket ban on Muslims, of the kind Trump originally floated on the campaign trail, may well still have failed it. But the Court looked over the evolution of the ban – selecting a small list out of the world’s many majority-Muslim countries, picking that list from the countries excluded from Obama Administration’s Visa Waiver Program and known state sponsors of terrorism, considering “the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies,” and narrowing the ban to adjust the list of countries (Iraq, Chad, and Sudan were all removed – Iraq because of its importance as an ally, Chad after it was found to have improved its vetting procedures) – and concluded that there was enough of a bona fide national security review to consider this a national security decision. And those decisions, the Court traditionally defers to.

Among other things, the fact that the Court decided this case on such narrow grounds means that it will leave to another day whether a law governing American citizens could be struck down on the basis that it was motivated by religious animus. That’s exactly the basis on which some litigants have challenged the “Blaine Amendments” in 38 state constitutions that bar public funds from being used for religious education – amendments whose passage was saturated with public statements showing that they were aimed directly at Catholics. (Of course, such amendments today also restrict aid to Jewish and Muslim schools). Likewise, Justice Sotomayor complained that the Court was giving too little weight to evidence of religious bias, compared to how it treated the Masterpiece Cakeshop case. But Masterpiece Cakeshop involved an American citizen’s right to have a neutral body decide a case against him – and courts have always scrutinized more closely evidence of bias by courts and administrative agencies.

Justice Thomas, as is his practice, wrote separately to warn about the habit of district judges entering nationwide injunctions, which he finds ” inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.”

The Court didn’t leave the topic without some reminders for the Trump Administration about how future actions might fare. Roberts, and Kennedy in a concurring opinion, both stressed the importance of presidential leadership on religious liberty, and Roberts went out of his way to announce that the Court no longer considers the notorious 1944 Korematsu decision to be good law, even though Korematsu involved detention of citizens (Japanese internment during World War II) rather than exclusion of foreigners and thus actually had nothing to do with the travel ban case. The Court normally would not go out of its way to drive a stake through an old decision that isn’t essential to the outcome, although doing so not only acknowledges that the decision is so reviled that nobody would want to be associated with it today, but also deters any court or lawyer in the future (including Executive Branch lawyers counseling the president) from citing it. And the message was clear: the sort of unquestioning deference given to national security justifications in Korematsu might still have a parallel when the government excludes foreigners, but it won’t be an answer when the government locks people up.

Dan McLaughlin is an attorney practicing securities and commercial litigation in New York City, and a contributing columnist at National Review Online.

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