By a narrow 5-4 vote, Supreme Court upholds Trump’s travel ban

I suppose this was predictable, and I don’t have the capability to judge whether Trump’s travel ban, however heinous, was legal or not, for that’s the basis on which Chief Justice Roberts, who wrote the ruling, upheld the restriction on immigration. It was, he said, legally within Trump’s powers.

The vote was 5-4, strictly along ideological lines, so you already know who voted for and against it.

The NYT’s report:

In January, the Supreme Court agreed to hear a challenge to Mr. Trump’s third and most considered entry ban, issued as a presidential proclamation in September. It initially restricted travel from eight nations, six of them predominantly Muslim — Iran, Libya, Syria, Yemen, Somalia, Chad, Venezuela and North Korea. Chad was later removed from the list.

The restrictions varied in their details, but, for the most part, citizens of the countries were forbidden from emigrating to the United States and many of them are barred from working, studying or vacationing here. In December, the Supreme Court allowed the ban to go into effect while legal challenges moved forward.

Hawaii, several individuals and a Muslim group challenged the latest ban’s limits on travel from the predominantly Muslim nations; they did not object to the portions concerning North Korea and Venezuela. They said the latest ban, like the earlier ones, was tainted by religious animus and not adequately justified by national security concerns.

From CNN:

“The Proclamation is squarely within the scope of Presidential authority,” Roberts wrote.

Challengers, including the state of Hawaii, argued that the proclamation exceeded the President’s authority under immigration law as well as the Constitution. They also used Trump’s statements during the campaign, when he called for a ban on travel from all Muslim-majority countries, but Roberts dismissed those concerns.

“Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition,” Roberts wrote. “But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.”

Apparently the opinion, with dissents, is a long one, so I’ll reserve comment until I’ve had a look at it.

ADDENDUM: Here’s First Amendment lawyer Ken White’s take on the decision, tweeted bit by bit. It seems that, according to White, the Court is rationalizing Trump’s bigotry by saying that there could still be some non-bigoted motivation for the ban, even if it wasn’t the real motivation.

64 Comments

  1. Craw
    Posted June 26, 2018 at 10:33 am | Permalink

    Interesting side note: the majority opinion comes down hard on Korematsu, saying it has no place in law. Does this actually overturn Korematsu, or is it just dicta?

    • Posted June 26, 2018 at 11:03 am | Permalink

      A SC dictum counts as an overruling.

      The dissent’s evoking of Korematsu was not germane and, frankly, a bit desperate — Korematsu was a US citizen afforded Constitutional rights; immigrant applicants are not.

    • Ken Kukec
      Posted June 26, 2018 at 3:00 pm | Permalink

      The ghost of Korematsu has haunted the Court, and the country, since War’s end. To overrule it now, even if by obiter dictum, was more an act of exorcism than jurisprudence — and a bit of a hollow gesture at that, given that no one thought Korematsu was good law that could ever withstand a direct challenge.

  2. Posted June 26, 2018 at 10:43 am | Permalink

    The law grants the POTUS broad discretionary powers in this regard, which previous POTUS have exercised. This decision is proper, regardless of trump’s motivation.

    As I understand it, the ruling finds that, while the law prohibits discrimination based on national origin in & of itself, national origin may be used as a handy classification for other elements by which applicants may be filtered.

    • Adam M.
      Posted June 26, 2018 at 11:57 am | Permalink

      That sounds like some very strange logic there. Using national origin as a proxy for other traits when judging individuals is discrimination based on national origin.

      That said, I don’t see anything wrong with making immigration decisions based on national origin. We’ve always done that and everyone else does that.

      • Posted June 26, 2018 at 12:23 pm | Permalink

        That was my initial understanding of the majority opinion’s logic. It could well be specious.

  3. DW
    Posted June 26, 2018 at 10:53 am | Permalink

    I’m very uncomfortable with this idea of the courts trying to read the minds of officials as to why they enacted a particular policy. I think that’s a very dangerous road to go down. You could easily end up with “Barack Obama said unkind things about wall street bankers, therefore his regulation of banks is based on bigotry.”

    The courts should not be scrutinizing campaign rhetoric. That’s the job of the voters.

    • Posted June 26, 2018 at 11:04 am | Permalink

      Yes, but remember Rule #1 of SJWs: It’s Okay When We Do It.

    • Ken Kukec
      Posted June 26, 2018 at 11:10 am | Permalink

      So you’d be down with a law requiring the teaching of Intelligent Design in public schools, so long as the legislation on its face paid lip-service to neutral legal principles and omitted any overt mention of a religious purpose?

      ‘Cause that’s precisely what they tried to do in Louisiana and the Dover PA School District.

      • Posted June 26, 2018 at 12:17 pm | Permalink

        IIRC, one of the most damning pieces of evidence in Dover was a public IDer document identical to an internal one, except with every instance of ‘creationism’ replaced with ‘intelligent design.’ Incontrovertible evidence of intent.

        • Ken Kukec
          Posted June 26, 2018 at 12:43 pm | Permalink

          Right. And to consider that document, the court had to look beyond the face of the school board resolution itself in determining the school board members’ intent.

      • DW
        Posted June 26, 2018 at 2:18 pm | Permalink

        If so called “intelligent design” was actually science, I wouldn’t have a problem with it being taught in science class. But since it isn’t science, it shouldn’t be. The religious motives of the proponents are irrelevant.

        The opposing argument could just as easily be turned around on you: The proponents of evolution are atheist and often say mean things about creationists. Does that mean teaching evolution in biology class should be banned?

        • Posted June 26, 2018 at 3:07 pm | Permalink

          Ken can speak for himself, but IIANM, it wasn’t decided on the scienceiness of the issue. The Lemon test was applied which specifically states the intent of the lawmakers mattered; “the statute must have a secular legislative purpose”. The religious motives were central to the case and the decision.

          • Ken Kukec
            Posted June 26, 2018 at 3:24 pm | Permalink

            Spot on, counselor. 🙂

          • Posted June 27, 2018 at 12:15 pm | Permalink

            And that might be a good thing – it might be easier for a judge to decide religious entanglement vs. bad science.

        • Ken Kukec
          Posted June 26, 2018 at 3:13 pm | Permalink

          The courts have banned Intelligent Design from the classroom solely on the basis that it violates the Establishment Clause of the First Amendment. Absent evidence of a proscribed religious motivation — which the courts have looked for in the words and deeds of legislators and school-board members — the courts lack any constitutional jurisdiction to decree what should or shouldn’t be excluded from school curricula simply because it is or isn’t “science.”

          • DW
            Posted June 26, 2018 at 3:48 pm | Permalink

            I haven’t looked at that case, but assuming you’re correct, that’s really scary. What you’re saying is that if the legislators were a bit sneakier, then teaching intelligent design would be allowed.

            Don’t you find that a bit precarious? Wouldn’t it be better to look at the actual policy rather than pass judgment on the motives of politicians?

            In the case of ID in schools, look at the actual text of intelligent design and judge whether it is scientific or religious. As it posits supernatural causes, it falls into the realm of religion. On the travel ban, it bans a handful of countries, and most of the world’s muslims are not affected by it. Moreover, the ban contains countries whose majorities include at least three different religions. Thus, the policy can’t be a “Muslim Ban”.

            Judging a policy based on campaign rhetoric is incredibly dangerous. Especially because politicians are known both for lying and grandstanding. If a politician says “I will go after the bankers!” to get elected, then passes a watered down half-a-loaf wall street regulation that doesn’t actually do much. Was his motivation animus towards the bankers? On its face, clearly not, since the policy is weak, even if the campaign rhetoric was quite vicious.

            • tomh
              Posted June 26, 2018 at 5:18 pm | Permalink

              “In the case of ID in schools, look at the actual text of intelligent design and judge whether it is scientific or religious. As it posits supernatural causes, it falls into the realm of religion.”

              Intelligent Design doesn’t posit supernatural causes. It holds that certain features of the universe and of living things are best explained by an intelligent cause. It doesn’t claim to explain the how or the who of that cause. If courts weren’t allowed to discern the religious motivations of ID it would be taught in schools now. In fact, Creation Science probably would have been allowed in the eighties.

  4. Nicholas K.
    Posted June 26, 2018 at 10:54 am | Permalink

    SCOTUS ruled for the Colorado cake bakers in part because of the overt bias exhibited by the Colorado civil rights board (the ruling was quite narrow and even stated it may not work in other instances). Yet they uphold this travel ban in spite of Trump’s overt anti-muslim bias. Quite hypocritical it looks to me.

    • Craw
      Posted June 26, 2018 at 11:10 am | Permalink

      No. The bias shown in the cake case was by the officials doing the adjudication as part of their adjudication. With Trump it is campaign rhetoric, and inference therefrom. Very different.
      A better example with Trump is where he, as supreme commander, opined a soldier under charge was guilty. The judge cited Trump as part of his ruling for the soldier.

    • Posted June 26, 2018 at 11:11 am | Permalink

      An interesting question. With the travel ban, the link between between trump’s anti-moslem bias and the ban itself is merely presumed. In contrast, the CO commission members openly stated their intention was to apply their anti-religious bias when enforcing the statute.

      • Nicholas K.
        Posted June 26, 2018 at 11:40 am | Permalink

        Trump himself called it a “Muslim ban.” (Jeff Flake has been commenting on this today). How is that presumed?

        • Craw
          Posted June 26, 2018 at 12:08 pm | Permalink

          Link? I think you have made an incorrect claim here.

            • Craw
              Posted June 26, 2018 at 2:16 pm | Permalink

              That’s not this executive order. That’s a different bad idea he did not turn into an executive order. So to be clear, regarding the EO in question, Trump did not “himself call it” a Muslim ban. Maybe that is the true motivation for the EO, but for the purposes of the court decision there is no confession to that effect from Trump or his administration. This is a salient point.

              • tomh
                Posted June 26, 2018 at 7:02 pm | Permalink

                Another salient point, perhaps, is that the Court felt that the President of the United States’ speeches and tweets on banning Muslims meant nothing as far as the motivation for the Proclamation (as it’s called) was concerned, while the motivations of an obscure government official in Colorado was reason enough to discriminate against a whole class of people. Hypocrisy in action.

              • Craw
                Posted June 26, 2018 at 7:17 pm | Permalink

                Nonsense. The “obscure” person was one of the persons officially making the ruling.

              • tomh
                Posted June 27, 2018 at 9:22 am | Permalink

                The point is that motivations seem to matter to the Court when they can be used to produce the desired result.

        • Posted June 26, 2018 at 12:30 pm | Permalink

          Except religion is not one of the classes protected by the law in question, only “race, sex, nationality, place of birth, or place of residence.”

          Nor is any ideology, for that matter: by law, avowed communists are denied entry.

          However reprehensible you might consider it, the POTUS could well “find” that admitting supplicants of a given religion constituted a security threat, and issue a blanket ban.

          The only 1st Amendment issue in play here is the Establishment Clause; a foreign national is not covered under the Free Exercise Clause.

    • tomh
      Posted June 26, 2018 at 12:49 pm | Permalink

      “(the ruling was quite narrow and even stated it may not work in other instances)”

      So it was claimed when issued, yet it already has worked in other instances. Yesterday the Court vacated the judgment of the state of Washington’s Supreme Court, that a florist’s religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination. None of the issues that were present in Masterpiece that made it such a “narrow ruling” appeared, yet the Court said it was fine to refuse to sell flowers to gays, because religion.

  5. chris moffatt
    Posted June 26, 2018 at 11:02 am | Permalink

    I find it distressing that the SCOTUS is so openly politicised. Whatever happened to knowledge of law and objective application thereof being a basis for judgeship? How can we rely on anything when judicial decisions rely not on facts and law but on personal opinion?

    • Ken Kukec
      Posted June 26, 2018 at 11:17 am | Permalink

      It was ever thus in controversial cases where neutral legal principles do not clearly dictate the outcome.

  6. Historian
    Posted June 26, 2018 at 11:05 am | Permalink

    An equally important decision was handed down by the Supreme Court today regarding a California law. As the NYT puts it:
    —————-

    “A state law requiring “crisis pregnancy centers” to supply women with information about abortion likely violates the First Amendment, the Supreme Court ruled Tuesday in blocking the law.”

    “The vote was 5 to 4, with the court’s more conservative justices in the majority.”

    ——————-

    The conservative judges framed their decision based on free speech. I have mixed feelings about this decision. These pregnancy centers refuse to tell women about their abortion options. I think they are duplicitous, but I suppose a free speech argument can be made for these centers to keep women in ignorance. It will be interesting to read what constitutional scholars say about the free speech argument. California needs to being a massive publicity campaign to help women not be seduced by these pregnancy centers.

    In any case, it is clear that the Supreme Court is driving the nation in a conservative direction. As was predictable, the refusal of Senate majority leader Mitch McConnell to allow Obama’s nominee, Merrick Garland, to come to a vote is paying handsome dividends for the right wing that will continue to keep on giving for decades to come. Democrats need to go beyond complaining and get out to vote if they want to stem this disturbing trend. There are signs that the Democratic Party is awakening from its long slumber. We’ll know if this is true in November. But, no matter what happens then, the power of the right wing Supreme Court will continue to loom.

    • yazikus
      Posted June 26, 2018 at 11:09 am | Permalink

      I think they are duplicitous

      It is well documented that they not only withhold information, but lie blatantly to women.

      • Posted June 26, 2018 at 11:18 am | Permalink

        Just skimmed the ruling very briefly (chores await!), but imo it’s misguided. Forcing an unlicensed clinic to provide that information would indeed constitute compelled speech. But a licensed clinic has chosen to engage in commerce, thus is subject to gov’t. regulation under the Commerce Clause. Further, the information that CA offers free abortions is a neutral fact, not an expression of a sincerely-held belief.

        • yazikus
          Posted June 26, 2018 at 11:22 am | Permalink

          I, too, need to delve more deeply when I have a moment (where do the moments go!). Overall, it does not bode well for women. What is the general feeling about this in your neck of the woods? Do people care?

    • Ken Kukec
      Posted June 26, 2018 at 11:23 am | Permalink

      Shouldn’t be long now before the anti-fluoridation crowd opens “crisis dental centers” to dupe people with toothaches into listening to their spiel.

  7. yazikus
    Posted June 26, 2018 at 11:08 am | Permalink

    The other case they handed down this morning was also a disappointment. It still scandalizes me that Garland was never considered seriously. I thought him rather milquetoast at the time, but now, watching what is happening I think I was remiss.

  8. Mark Sturtevant
    Posted June 26, 2018 at 11:32 am | Permalink

    Another thing that rankles me. The Republicans’ outright theft of Obamas’ supreme court nominee has been bearing strange fruit.

  9. JonLynnHarvey
    Posted June 26, 2018 at 11:39 am | Permalink

    And if I’m not mistaken, no terrorism has ever originated from any of these countries, and I’ll bet Trump has no business interests in them.

    • Posted June 26, 2018 at 11:59 am | Permalink

      ???? Iran, Syria, Somalia and Libya are on that list.

      An old college friend of mine whose uncle died at Lockerbie would dispute your claim, at the very least.

      Is it possible you forgot the sarcasm tag?

      • tomh
        Posted June 26, 2018 at 1:37 pm | Permalink

        How does Lockerbie relate to the travel ban? The ban on immigrants is based on “national security”, yet the fact is that no immigrants from the banned countries have carried out terrorist attacks.

        • Posted June 26, 2018 at 1:58 pm | Permalink

          I was responding to this; “…if I’m not mistaken, no terrorism has ever originated from any of these countries”.

          Lockerbie was just one example of terrorism that originated from one of the countries in the ban.

          • tomh
            Posted June 26, 2018 at 2:16 pm | Permalink

            Yeah, I guess in the context of the thread I assumed the statement was related to immigration, the Court decision, the ban, etc., and not any act, anywhere, from the beginning of time.

            • Posted June 26, 2018 at 2:30 pm | Permalink

              Look, agree or disagree with Trump’s ban, there is no doubt -NONE- that the countries I listed support, enable and/or abet terrorism. John made a claim that is demonstrably wrong – or else he forgot the sarcasm tag. Me disputing his claim that terrorism did not originate from any of the countries doesn’t mean the following;

              -I support Trump’s ban
              -No other countries support terrorism.
              -The ban is not really about muslims.
              -Trump is NOT a big-fat doody head.

              Ok?

              • Ken Kukec
                Posted June 26, 2018 at 3:40 pm | Permalink

                I think JLH’s point may have been that no attacks on the American homeland have ever originated in, or been carried out by anyone from, the identified countries (which is true, I think, as far as it goes). Given that other countries not under ban — including Saudi Arabia, whence came 15 of the 19 9/11 hijackers — cannot say the same, the ban seems arbitrary and capricious. (Quite coincidentally, I’m sure, none of the banned countries has ever been home to a Trump-branded property, either. 🙂 )

    • Mark R.
      Posted June 26, 2018 at 12:21 pm | Permalink

      Indeed…that’s why Saudi Arabia, the country where most of the 9/11 hijackers came from, has been protected…because they are ‘regional allies’ and they have a lot of money to give to our military industrial complex. It always comes back to the dosh.

      It also goes without saying that the odds of dying by a foreign-born terrorist are lower than dying from an animal attack, lightning strike, heat wave, airplane crash, bicycling, choking, sharp object accident and so on. Hell, you’re 68 times more likely to die from walking.

      But the trump base thrives on fear, demagoguery and bigotry. So the result of this ruling simply amounts to more red meat for the trump base.

      • revelator60
        Posted June 26, 2018 at 1:06 pm | Permalink

        Saudi Arabia not only has lot of money to give to our military industrial complex, it has a lot of money to give to Trump’s businesses. So naturally he would exclude the most dangerous and terrorist-infested Muslim country from his Muslim travel ban.

        • Mark R.
          Posted June 26, 2018 at 2:18 pm | Permalink

          Yeah, I’ve been waiting for some basic chart that shows every single one of Trump’s businesses (this includes buildings with his name on them) and where they are in the U.S. and the world. It shouldn’t be that hard to do. Maybe there is already one out there.

          • Posted June 26, 2018 at 3:11 pm | Permalink

            Of course they do. Trump has business interests in a number of Muslim majority countries, including Egypt, Saudi Arabia. UAE, Qatar, Indonesia, Turkey, Azerbaijan and Georgia.

  10. Curtis
    Posted June 26, 2018 at 11:43 am | Permalink

    I have to agree with the Supreme Court’s logic. If it were overturned because Trump is a bigot, it leads to all sorts of problem.

    For example, if Trump is indisposed for a day Pence would be acting president. Because Pence is not openly an anti-Muslim bigot, he could issue the exact executive order and it would be legal.

  11. Randall Schenck
    Posted June 26, 2018 at 12:15 pm | Permalink

    Lets see. We lock’em up at the boarder and send them all back without a hearing. We ban entire countries from setting foot in the country. Do we have a theme here? Like maybe something brown. You know, not all white. Why not just bomb them? That would look better, eh?

    • Mark R.
      Posted June 26, 2018 at 12:24 pm | Permalink

      Yup…all this amounts to is race baiting for the trump base of bigots.

      • Randall Schenck
        Posted June 26, 2018 at 12:50 pm | Permalink

        It is completely bigoted and why not just call it the racist party. Stop playing games with words. Today he is still crying for the wall. Must have the wall he says. Yet he does not need one brick on the longest border this country has up north. Nobody sneaking across the border there?

        Part of what this country use to be was a message to the rest of the world. One of the judges in this case today said, part of what the executive is suppose to be doing is communicating and also treating the rest of the world in our principals and standards that we have here for our citizens. Trump practices just the opposite by stating they have none of our constitutional rights or respect. We don’t want them, screw them.

    • Posted June 26, 2018 at 3:09 pm | Permalink

      You mean Trump’s voters are unaware that Iranians and Syrians are whiter than many of them?

      • Mark R.
        Posted June 26, 2018 at 3:38 pm | Permalink

        I would say upwards of 95% of Trump voters think that there are no white Iranians and Syrians. Just as I’m sure the same amount don’t know there are plenty of white Mexicans, South Americans, etc.

        • XCellKen
          Posted June 26, 2018 at 9:29 pm | Permalink

          I used to have a client who was a Jewish Mexican.

  12. Posted June 26, 2018 at 1:02 pm | Permalink

    I am not at all surprised by this decision. While the Muslim religion is protected within our borders, POTUS has the authority to block whatever group he wants, except citizens, from entering the US, all in the name of national security.

    Of course his motive is to consider all Muslims as terrorists, just as he considers all immigrants, except the ones he knows personally, as rapists and murderers. Elections have consequences. This is what Trump voters have done to our country. Can’t wait for November.

  13. Posted June 26, 2018 at 9:24 pm | Permalink

    After reading the list of countries in the ban, I can’t say I object to the ban. Those are all violent countries filled with people who are dangerous to us. That is impression, legal arguments aside. Simpleton on the basis of safety and preservation of American lives. The rest of you can argue about the law, morals, fredom and right or wrong. I just read the list of countries and feel relieved that the ban is there.

    • tomh
      Posted June 26, 2018 at 9:36 pm | Permalink

      The heck with the law, yeah Trump!

      • Posted June 26, 2018 at 9:49 pm | Permalink

        I was just expressing my feelings. Not legal issues. I have looked at the legal issues and the court was exactly correct. The president has the authority to issue the order. And I did not vote for Trump and am not a Trump supporter.If Trump accidentally does something right occasionally, don’t blame me . I can’t help that .

        • tomh
          Posted June 26, 2018 at 11:11 pm | Permalink

          Exactly correct? Well, plenty of legal minds disagree with you. But it’s the law of the land, thanks to the Republican’s clever ploy with the crucial Supreme Court appointment.

  14. Posted June 26, 2018 at 11:48 pm | Permalink

    People disagree with me? I don’t care. Do you?


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