AP (“Supreme Court upholds Trump travel ban“):
The Supreme Court on Tuesday upheld President Donald Trump’s ban on travel from several mostly Muslim countries, rejecting a challenge that it discriminated against Muslims or exceeded his authority.
The 5-4 decision is the court’s first substantive ruling on a Trump administration policy.
Chief Justice John Roberts wrote the majority opinion, joined by his four conservative colleagues.
Roberts wrote that presidents have substantial power to regulate immigration. He also rejected the challengers’ claim of anti-Muslim bias.
The court may have signaled its eventual approval in December, when the justices allowed the policy to take full effect even as the court fight continued and lower courts had ruled it out of bounds.
Roberts was careful not to endorse either Trump’s provocative statements about immigration in general and Muslims in particular.
“We express no view on the soundness of the policy,” Roberts wrote.
Justice Sonia Sotomayor wrote in a dissent that based on the evidence in the case “a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.” She said her colleagues arrived at the opposite result by “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
The SCOTUSBlog summary (presumably copied from the Opinion itself):
Holding: The President has lawfully exercised the broad discretion granted to him under 8 U. S. C. §1182(f) to suspend the entry of aliens into the United States; respondents have not demonstrated a likelihood of success on the merits of their claim that Presidential Proclamation No. 9645 violates the establishment clause.
Judgment: Reversed and remanded, 5-4, in an opinion by Chief Justice Roberts on June 26, 2018. Justice Kennedy and Justice Thomas filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.
From the SCOTUSBlog live blog:
Addresses the issue of the president’s statements on excluding Muslims from the US. Says “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.”
[…]
Court says that it will look beyond the face of the Proclamation to consider the plaintiffs’ extrinsic evidence about the president’s motivations, “but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds
Says the proclmation is based on legistimate purposes, without saying anything about religion. Proclamation is result of a “worldwide review process” by multiple cabinet agencies. Notes that it doesn’t apply to Iraq, “one of the largest predominately Mulsim countries in the region.”
“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. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim.”
[…]
This, from the majority, is notable:
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. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).
[…]
Justice Kennedy’s concurrence says, essentially, that there are some things that are unconstitutional that the Judiciary is not in a place to correct or address. It’s subtext is pretty close to the surface, and seems designed to chastise the Executive while agreeing with the majority that there was not anything the Court could do about it.
The full opinion is here in PDF form, along with various concurrences and dissents.
Excerpts from the Syllabus:
Held:
1. This Court assumes without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. See Sale v. Haitian Centers Council, Inc., 509 U. S. 155. Pp. 8-9.
2. The President has lawfully exercised the broad discretion granted to him under §1182(f) to suspend the entry of aliens into the United States. Pp. 9-24.
(a) By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here.[…]
(b) Plaintiffs have not identified any conflict between the Proclamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high-risk countries to provide a minimum baseline of reliable information. Further, neither the legislative history of §1182(f) nor historical practice justifies departing from the clear text of the statute.
(c) Plaintiffs’ argument that the President’s entry suspension violates §1152(a)(1)(A) ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into
the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. Had Congress intended in §1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response
to an epidemic, or even if the United States were on the brink of war. Pp. 20-24.
3. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment
Clause. Pp. 24-38.[…]
(b) Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the campaign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but 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, the Court must consider not only the statements of a particular President, but also the authority of the
Presidency itself. Pp. 26-29.
(c) The admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792. Although 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. That review is limited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow inquiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of applying rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. Pp. 30-32.
(d) On the few occasions where the Court has struck down a policy as illegitimate under rational basis scrutiny, a common thread has been that the laws at issue were “divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests.” Romer v. Evans, 517 U. S. 620, 635. The Proclamation does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion.
I haven’t yet read the Kennedy concurrence or the Sotomayor dissent, save for the summaries quoted above. But the Roberts opinion strikes me as specious.
I’m extraordinarily sympathetic to the notion that the President has both Constitutional, inherent, and statutory powers with regard to controlling our borders. And I agree with the Majority that, so long as a factual basis is offered, the Judiciary ought grant broad leeway to the Executive given those powers. Here, though, we have a President who, as a candidate and numerous times since taking office, has made statements obviating the proffered national security rationale for this policy. He has repeatedly demonstrated animus against Muslims and others. His various representatives, notably including Rudy Giuliani, have directly said that they were looking for a “Muslim ban.” It’s absurd for the Court to ignore those statements and take the sham reasoning offered at face value, particularly when those reasons are clearly not founded on any rational basis. Most notably, the ostensible reasons for the ban apply much more forcibly to countries, including Saudi Arabia, to which the ban does not apply.
It would be one thing if the Courts lacked either the authority to look at outside evidence or had historically been extremely reluctant to do so. Indeed, Roberts concedes that they can consider outside facts. To then claim that they should be ignored just because the Executive offers a sham study, which was clearly aimed at reaching a preordained conclusion, is laughable.
In fairness, Roberts saves his best argument for the closing paragraph:
Three additional features of the entry policy support the Government’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for various categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. Pp. 33-38.
But there were Muslim-majority countries excluded from the list to begin with, including terrorist sponsors like Saudi Arabia. That states who should never have been on the list on pragmatic grounds were soon removed is evidence that it was hastily and shoddily crafted, not that it’s a reasonable manifestation of national security policy. And a “waiver program” for a law that should never have been enacted hardly solves the underlying problem.
The fact that the four dissenters couldn’t sign off on a single rationale for why the ban was unlawful, however, is not a great sign. Breyer wrote one, joined by Kagan, and Sotomayor wrote another, joined by Ginsburg. They’re not controlling, so I’m not going to bother to excerpt them in detail. But two passages from Sotomayor’s dissent are worth noting:
The Court’s decision today . . . leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims
entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.
And:
Given President Trump’s failure to correct the reasonable perception of his apparent hostility toward the Islamic faith, it is unsurprising that the President’s lawyers have, at every step in the lower courts, failed in their attempts to launder the Proclamation of its discriminatory taint. See United States v. Fordice, 505 U. S. 717, 746-747 (1992) (“[G]iven an initially tainted policy, it is eminently reasonable to make the [Government] bear the risk of nonpersuasion with respect to intent at some future time, both because the [Government] has created the dispute through its own prior unlawful conduct, and because discriminatory intent does tend to persist through time” (citation omitted)). Notably, the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant. Cf. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 18) (“The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to the affirmance of the order—were inconsistent with what the Free Exercise Clause requires”). It should find the same here.
The latter inconsistency with a ruling just days ago by the same Court is rather damning.
Update (Doug Mataconis): My comments on the ruling proved to be far too long for a comment thread, so I’ve posted my own analysis of the ruled at this link.
