S E E D E D C O N T E N T
The Supreme Court overturned the Ninth Circuit’s ruling against President Trump’s travel ban on Tuesday in Trump v. Hawaii. In an opinion by Chief Justice John Roberts, the court held Trump’s order banning people from several foreign countries from entering the United States was constitutional and consistent with the power granted him in the Immigration and Nationality Act (INA).
That the court held the so-called “travel ban” to be constitutional is not surprising; the Ninth Circuit is the most often overruled appeals court and its holdings are often at odds with mainstream jurisprudence. What is shocking is that the decision was 5-4, not 9-0. That four justices — including the more thoughtful members of the court’s Left — were willing to adopt a radical theory of intent-based law shows how deep the rot of Trump Derangement Syndrome goes, and how far activists in the judiciary will go to thwart the man they hate, even when he acts strictly within the rule of law.
The travel ban, which went into effect in its current form in March 2017, barred nationals of several foreign nations (some of which are majority-Muslim nations) from entering the United States, stating that each of those countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” The order set up a period of administrative review in which its terms might have been further refined. It was also challenged immediately in court.
District Courts in Hawaii and Maryland quickly entered injunctions against the order, which were just as quickly appealed. Writing at the time of the district courts’ opinions, Mollie Hemingway noted the enormous problem with the rulings :
Trump said the temporary travel restriction was needed for national security. In issuing his temporary restraining order, Watson said Trump’s order was a result of nothing more than religious animus against Muslims. The judge’s order is predicated on what he thinks Trump wants to do, not the order itself.
Throughout the ruling, Judge Watson concedes there’s nothing about the executive order that would be problematic if not for his interpretation of Trump’s statements made in the months and years prior to issuing it. He repeatedly states his feeling that Trump had a bad motive in issuing the order.
New Ruling, Same Nonsense
The Ninth Circuit affirmed the ruling but not its bizarre reasoning. Their holding, equally unmoored from reason or precedent, was that while the INA “vests the President with broad powers to regulate the entry of aliens,” it is also true that “[t]hose powers … are not without limit.” That would be reasonable as far as it goes, except that the Ninth Circuit judges failed to identify any such limit in the INA or in the Constitution. They wrote that Trump’s order “conflicts with the statutory framework of the INA by indefinitely nullifying Congress’s considered judgments on matters of immigration,” but fail to identify the provision with which it actually conflicts.
That is because there is no such provision. Congress granted the president broad discretion in enforcing the immigration laws. Ignoring the text, which they admit would allow for the president’s actions, the Ninth Circuit suggested a “holistic review,” including consideration of the “statute’s legislative history … congressional policy… and ‘common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude.’”
The law — the thing that passed both houses of Congress and was signed by the president in accordance with the Constitution — is not enough for the Ninth Circuit. They need to mix in “common sense.” And when the court itself gets to define “common sense,” what do you know? They get to call something illegal whether it was in accordance with the law or not. (The case they cite for this theory of interpretation, FDA v. Brown & Williamson , dealt with whether the FDA had authority over tobacco, a completely inapposite point here since no one doubts that in INA Congress explicitly delegated this very power to the president.)
All of this talk of “common sense” and “holistic reviews” is the Ninth Circuit’s way of avoiding the nonsensical implications of the Hawaii court’s ruling, that Trump’s campaign rhetoric against Muslim immigration somehow removes from him the power to act under the INA, even though any past or future president would retain that power.
The Supreme Court rejected the Ninth Circuit’s eccentric ruling, as it often does. Chief Justice Roberts’s opinion for the Supreme Court begins with the law: “Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission.
The act also vests the president with authority to restrict the entry of aliens whenever he finds that their entry ‘would be detrimental to the interests of the United States.’” The INA, as Roberts puts it, “exudes deference to the President in every clause.” It gives him wide authority what restrictions he may impose, on whom, and for how long. Roberts makes all of these points with citations to the text of the law, a refreshing change after the lower court’s mystical holism.
Trump’s order gave his reasons, but the plaintiffs say that those reasons are not good enough, or else are just a smokescreen for Trump’s real reason: an animus against Muslims. As the court notes, no such rationale has ever been demanded of previous presidents. The court also cites orders by presidents Ronald Reagan and Bill Clinton, which explained temporary exclusions of certain aliens with a single sentence.
Although only some of the countries named in the order are majority-Muslim countries, the plaintiffs sought to paint the order as prejudiced against that faith. They cite a section from a different area of immigration law concerning immigrant visas to back up their point, but Roberts and the majority were not fooled. Roberts notes that the provision they cite has never been construed as a limit on the one at issue here and that “presidents have repeatedly exercised their authority to suspend entry on the basis of nationality,” as Trump’s order does.
Having established what the law says and that Trump did not violate it, Roberts turns to Trump’s speeches about Islam and whether things he said on the campaign trail can invalidate his authority as president. The answer, which should surprise no one who has thought about it for a second, is no, they cannot.
The very idea is insane. If the law gives the president a power and that power does not violate the Constitution, then any president may exercise it. Going beyond even ordinary lefty rejection of textualism, the plaintiffs in Trump v. Hawaii say the Supreme Court must ignore the text entirely when the motives behind an action are impure. Hillary Clinton could have issued this order were she president because she is good; Trump is bad, so he cannot. And who would determine bad and good? The unelected courts, of course.
this is a serious error in judgment. The president’s words against Muslims may indeed have been hateful and wrong. But campaign speeches do not carry the force of law. They cannot enlarge a president’s powers, nor can they shrink them. The president is not a king whose every word is law. He is the chief executive of a republic, and his powers are those delegated to him by Constitution and statute. No more, no less.
“Plaintiffs argue that this president’s words strike at fundamental standards of respect and tolerance,” Roberts writes, “in violation of our constitutional tradition. 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.” As long as the order has a rational basis — which the court says that it does — looking behind the order to discern a secret motive is inappropriate.
‘I Don’t Like It’ Doesn’t Mean ‘It’s Unconstitutional’
The plaintiffs in Trump v. Hawaii would have the Supreme Court invent a principle that the president’s powers are reduced when he says nasty things. That idea is found nowhere in our Constitution or caselaw. If the president has the power to do something under the law, he has that power whether he is a jerk or not, whether he acts for the “right” reasons or the “wrong” ones. If a different president would have had this power under law — something no one disputes — it is ad hoc madness to say that this president does not have that power.
In Marbury v. Madison, Chief Justice John Marshall wrote that “it is emphatically the province and duty of the judicial department to say what the law is.” It went without saying in those more enlightened times that it was not the province of the judiciary to say whether the law is being used by someone who, in their opinion, is using it for the wrong reasons.
The dissenters, led by Justice Sonia Sotomayor, try to get around this by claiming that the law has no rational basis. But they do so, as Roberts notes, “by refusing to apply anything resembling rational basis review.” What they are really doing, as Roberts writes, is expressing their disapproval of the order and their opinion of the man issuing it. They “challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters,” the chief justice concludes.
There is a difference between thinking something is a bad idea (and you could easily argue that the travel ban is a bad idea) and claiming it has no rational basis and is therefore void. The plaintiffs, the district court, the Ninth Circuit, and Sotomayor are committing a cardinal sin of jurisprudence: coming up with the answer they wish was true and working backward to invent a legal justification for it.
But even if they are correct that the travel ban order is terrible, that does not mean it is illegal or unconstitutional. We in this country are governed by laws, not by a judge’s personal morals. It may be at times that the laws we have do not exactly match our idea of right and wrong, but the answer in that case is to change the law, not to pretend it doesn’t say what it very clearly says.
Many of us found the president’s comments on Muslims to be wrong and hateful, and many of us find the travel ban to be the wrong way of improving our national security. But the theory advanced by the plaintiffs here would be of greater harm still to the rule of law and would create a system in which judges do not “say what the law is” but, rather, say what they think it ought to be. That is the beginning of the end for representative government. That four of nine justices cared more about their personal feelings than the rule of law is far more dangerous to this republic than anything President Trump has ever done.
Kyle Sammin is a lawyer and writer from Pennsylvania.
The law must apply to all Presidents, not just the ones the left thinks are competent
Zero ranking Obama campaign or administration officials have ever been indicted for malfeasance.
Trump can't say that. The Trump Indictments are just started. Put that in your pipe and smoke it...
Contrary to the constant lies of the gop Obama was the squeaky cleanest President there ever was.
The Trumpidency is turning out to be a crime in progress. History won't be kind to Trump Enables.
The indictments have nothing to do with what he was supposed to be looking into. Of which there is ZERO evidence.
Neither has Trump's. None of which has anything to do with the President's wide latitude to act in the interest of national security.
Wow. Now I can understand why some people can't address specific issues--they have no focus.
It's not a dangerous sign that these justices disapproved of donald rump's muslim ban.
Trump himself called it a Muslim ban, and he also said "I think Islam hate us." A more clear example of an unconstitutional motive for an EO doesn't exist.
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False - they didn't do that at all. They purposely avoided examining the context of the Trump regime's numerous anti-Muslim comments, and they sent the case back to the 9th Circuit to consider that issue. Did you even read the ruling? I'm quite sure that you did not.
If it were a "Muslim ban", Venezuela wouldn't be on it, because it's a predominantly Christian country. Indonesia, Egypt, and other predominantly Muslim countries would be on the ban if it targeted Muslims.
You are wrong. The Court ruled that the lower courts were not totry and determine motive. Every President has the authority. PERIOD.
By the way, Justice Clarence Thomas went a bit further, questioning the circuit courts right to hamstring a President.
As Kennedy's concurrence noted the President isn't permitted to violate the 1st Amendment. It's that aspect and the ample evidence thereof which the court majority chose to ignore.
How many majority Muslim countries are there again? Do you know how to count to 50? How many countries are under the ban? How many of them are not Muslim? How many of those countries listed in the ban are either sponsors of terrorism or in turmoil with terrorists? Oh, that's right, ALL OF THEM!
I read it and, basically, he’s right. The court, at page 34 of the opinion, specifically notes that the text of the proclamation doesn’t mention religion at all. The court goes on to note that the mere fact that most of the nations in the proclamation are Muslim cannot possibly make it a Muslim ban since the ban only covers 8% of the world’s Muslim population.
The court did not remand the case to the 9th circuit to consider Trump’s anti-Muslim comments because the court found that Trump’s comments are irrelevant in light of the fact that he has an independent raional basis for the ban. The 9th circuit had previously granted a preliminary injunction because the 9th circuit believed that the plaintiffs would likely succeed on the merits. The Supreme Court, however, ruled that granting a preliminary injuction was an abuse of discretion and remanded it to the 9th circuit for such further proceedings as it deems necessary. However, since the Supreme Court has addressed the merits of the issue as part of its review of the injunction, I see nothing left for the 9th circuit to do but dismiss the case.
This ruling was about the injunction issued by the court in Hawaii, not per se about the merits of the case as Kennedy noted. Here's some assistance for those who get all their news from Islamophobic right wing sources like Fox and Breitbart:
It seems to me that your opinion about any media source that isn't left wing must be Islamophobic - am I not right?
It is the law itself which the liberal circuit courts chose to ignore
This simply confirms what I said. There is nothing left for the 9th circuit to do because the Supreme Court has addressed the merits as part of its review of the injunction. Do you understand that?
Actually they didn't reach the merits of the case since not even the president is allowed to violate the 1st Amendment by acting out of religious animus, but they did choose not to scrutinize that animus even though Trump stated it quite explicitly. Rulings on preliminary injunctions rarely address the merits of a case.
Really? Which law is that exactly? Seems like several lower courts including the 4th COA and the DC appeals court considered 1st Amendment violations by a president to be of great concern. No surprise that Trump's DOJ had to revise the EO several times to make the religious animus less obvious to the bigoted conservative Christians on SCOTUS.
By the way didn't your Fuhrer say after he was illegitimately inaugurated that he needed only 90 days to "figure out what the hell is going on"? Seems like that 90 days expired long ago and he still hasn't figured it out. Is he incompetent or just really dumb? Or is he just dragging his feet because he's a huge Islamophobe who panders to his Islamophobic supporters?
Okay--please explain how the alleged "religious animus" changed from one EO to the last.
Note the changes so we can all compare.
Fuhrer? Do you live in another country, because here in America, we ELECT Presidents.
You might have heard of the current one--his name is Trump.
Just accept that the EO was legal as we told you all along.
I realize it has probably been a tough week with the SCOTUS decisions and all, but buck up, man!
That would be the 90 days in which the lower LIBERAL courts suspended the process? Ya, now, I would hope we should have the ban re-installed indefinitely and hopefully more countries will be added to the ban!
Get used to it!
I don't charge for educating:
“For more than a century, this court has recognized the admission and exclusion of foreign nationals” is a matter for the president and Congress, and is “largely immune from judicial control,” Chief Justice John G. Roberts Jr. said for the court. “Foreign nationals seeking admission have no constitutional right to entry.”
Please pass the word to the circuit court liberals
It is and always was a Muslim ban.
Nope, that would be the 'conservative' judges
You’re wrong in this instance and the explanation that you yourself posted makes that clear. A preliminary injunction “always” addresses the merits of a case to the extent that it assesses the likelihood of success. What’s really rare is that the Supreme Court decided to address whether an injunction should have been issued. A majority of the highest court has said that Trump’s animus is irrelevant because he has an independent rational basis for his proclamation. Having said that, there is nothing further for the 9th circuit to consider. For all practical purposes, it’s over!
Whenever you ask someone to point out the alleged religious bias in the EO, all they can do is point out Trump's comments while campaigning. In other words--they have bupkis!
I wonder why they can't point out a SINGLE thing in the EO that discriminates against Muslims--while screeching about some mythical "MUSLIM BAN"!!!!!!!
What you call "Conservative Judges" seem to be the judges who remember what they were taught in law school about Presidential powers. We seem to have a problem of either willful ignorance or judicial activism within certain circuit courts, Something that Justice Thomas took the time to comment on:
"In short, whether the authority comes from a statute or
the Constitution, district courts’ authority to provide
equitable relief is meaningfully constrained. This authority
must comply with longstanding principles of equity
that predate this country’s founding.
Universal injunctions do not seem to comply with those
principles. These injunctions are a recent development,
emerging for the first time in the 1960s and dramatically
increasing in popularity only very recently. And they
appear to conflict with several traditional rules of equity,
as well as the original understanding of the judicial role."
He’s referring to congressional acts that vested broad authority in the president to do what he did. When the majority of the Supreme Court decided that Trump had an independent rational basis for his proclamation, it automatically made every other contrary view in a lower court completely irrelevant. No matter how many times Trump had to revise the proclamation to get it right, the point is he got it right.
It’s amazing how many insults you can pack into a paragraph.
They suffer from Trump derangement syndrome. It causes them to see Trump as Hitler, surrounded by an invisible army of alt-right Nazis. Detaining aliens who enter the country illegally becomes the same as putting Jews in a death camp. Separating children from parents, pursuant to a court order that says you can’t keep kids in detention, is the same as Mengele at a death camp — waiving his hand one way or the other to determine who lives and who dies. A proclamation that doesn’t mention religion becomes a religious ban not because it is one but because Trump said that he wanted one (I guess the words in the proclamation will later re-write themselves to align with Trump’s “true” intent and no one will notice).
They believe they have the power to peer into Trump's soul and know what's there. So actual evidence isn't required, they "know" the truth, like ancient mystics.
Imagine starting a precedent of looking at what a Presidents motivations might be?
The law prevails - feelings and opinions do not. Laws can be changed, dropped and new ones created, but there is a process to do that, and only that process WILL do that.
Well said!
I don't think Sotomayor has a clue what a Judge's role is. Her dissents read like campaign speeches for Congress.
‘I Don’t Like It’ Doesn’t Mean ‘It’s Unconstitutional’
This, a thousand times.
Unfortunately Sotomayor was exactly right - this ruling is just as bad and as likely to be repudiated as the Korematsu ruling.
Dissenting opinions mean nothing, and can be written by anyone not agreeing with the MAJOIRITY decision.