I have a column in The Hill today on the decision of the Supreme Court in favor of the Trump Administration on the travel ban. After the first travel ban decision, I predicted that (while lower courts might disagree) the Supreme Court would reverse on the heavy reliance on President Donald Trump’s campaign statements and tweets. For prior columns, click here and here and here and here and here and here and here and here. Nevertheless, critics have cried foul at the 5-4 decision, including Sen. Mazie Hirono, D-Hawaii, has said that this creates a dangerous imbalance in the separation of powers. I believe the opposite is true.
The Court also rejected the repeatedly stated argument that immigration law prevents a ban from an entire country — a position that I also previously found flawed.
That statutory argument and the reliance on the President’s public comments were the same issues from the first travel ban decision. In that sense, it is not true that the threshold issues have changed dramatically from the first round. Indeed, the challengers repeatedly stated that the core issues of statutory and constitutional authority had not changed.
Hirono stated on NBC News:
“Who is going to be next? Is the president going to issue an executive order against Mexicans? Is he going to issue executive orders against people coming from Honduras or Guatemala? What’s next?” Hirono told NBC News. She added that she wasn’t optimistic that Congress would provide a check against the Trump administration moving forward. In order for checks and balances to work, we need a Congress that will serve as a check. We certainly don’t have that now.”
I have to disagree with Hirono. The courts are often called “the least dangerous branch” because they are independent, apolitical, and tied to core legal procedures. The danger to the separation of powers arises when courts can go far outside of the traditional record and pick public comments to use as determinative elements in analysis. Trump had conflicting statements on the record, including denials that this policy was a Muslim ban. The question is not the travel ban but the judicial function.
The Court is holding lower courts more closely to the traditional record and this is a shot across the bow not to be carried away by the President’s often inflammatory and disconcerting language. The President’s tweets magnified the difficulty for the Justice Department in litigating this case. He became the chief witness against his own Administration.
In the end however the decision today reinforces rather than reduces the separation of powers in our system.
47 thoughts on “Supreme Court Upholds Travel Ban In Major Victory For The Trump Administration”
Gotta love the histrionics! Dred Scott was returned to slavery; the Japanese in CA were taken from their homes and businesses and held in internment camps. Today’s SCOTUS opinion simply means that foreigners from certain countries cannot visit the U.S. They have to stay home and can’t come here to go to Disneyland or surf in Malibu. Too bad; but they’ll get over it.
anon – you are really going to quote John Lewis as a moral center? This is a man who cannot remember where his constituents live.
It’s rascist I say. No religion has a right to attack us!
The Donald makes the Red Queen appear sane.
The essential equation here is can campaign statements and/or rhetoric invalidate an otherwise legal and facially neutral proclamation that rests “squarely within the scope of Presidential authority”.
Clearly, this is a victory for textualists and a sound and well-reasoned opinion even though I remain opposed to the travel ban as a matter of policy. How unwieldy would it be to have this same travel ban be legitimate under one president but illegitimate under another or to have the travel ban suddenly become legitimate if the President renounces his previous problematic statements? Yet, the impact to those affected would remain the same. As even Sotomayor notes by reference, the Court must be careful not to engage in “any judicial psychoanalysis of a drafter’s heart of hearts”. To put the shoe on the other foot, it could similarly hold Hillary Clinton (if she were President) accountable for her “super predators” that “need to be brought to heel” rhetoric which is widely considered as racist. However, ill-considered and unfortunate these sorts of statements are they should not be the basis for invalidating otherwise legitimate Constitutional acts. Ultimately, the remedy lies in the voting booth and not in judicial expansionism.
I enjoyed Sotomayor’s well-written and impassioned dissent which indirectly relies on the O’Connor variant of the Lemon test–the reasonable observer standard. Unfortunately, the dissent provides little in the way of precedent or rationale for using this standard. Moreover, the judicial implications of invoking the Lemon test are problematic. In short, how reasonable a reasonable observer is very much in the eye of the beholder and the legal bar for overriding an otherwise legitimate presidential proclamation on this basis should be a very high one indeed and campaign rhetoric, however problematic, are hardly strongly suggestive when the travel ban is facially neutral. The issue then becomes is the travel ban really a Muslim ban in disguise even though it affects 8% of Muslims worldwide and there are countries in the ban that are not Muslim. The persuasive lines of evidentiary argumentation start to thin considerably. Enter the reasonable observer.
Regarding legal implications of the Lemon test (reasonable observer), as the late Justice Scalia correctly and colorfully notes:
“As bad as the Lemon test is, it is worse for the fact that, since its inception, its seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve”.
“As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again…”
“The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will.”
Like Narcissus gazing at her reflection (the reasonable observer) in the pool, we simply see and fall in love with what we want to see. In short, the reasonable observer standard simply enables the following: we find the end we want and justify the means.
Lastly, I see some parallels between this line of reasoning in Trump v. Hawaii and the recurrent “obstruction of justice” charges that are currently being strewn about with respect to otherwise legitimate uses of Article II powers by President Trump. We should be careful as to how we read, weigh and invoke the tea leaves of intent and motivation.
I have read comments today, “I am no longer welcome in America”, “This is as unconstitutional as the election of President Trump”, “Maybe it time we remove the Supreme Court” – WHAT?!!?!
I have been around for some time, I have watched a lot of CRAZY STUFF, but in the last few years I just am at a loss for words. I actually saw this first come through internationally this morning, from Indian. I always like to read the comments, I like to see peoples reactions. Maybe people in the US need to read what they are saying over there, because I was actually shocked. The support for our Supreme Courts decisions & for President Trump standing by his political promise gave them HOPE! MANY of the comments were praising the decision, due to spike in crime in BOTH Indian & the EU.
I find it funny when people say the “United States is the joke” – that the World is laughing at us, because I often read international publications & I have found the genuine response to be quite different.
President Obama had these same countries listed, and somehow no one cared when Obama was the President, or did anything similar to President Trump. This political, selective outrage has to stop!
The Supreme Court majority did the RIGHT THING by looking at the facts in seeing that a small percentage of, I believe it was 8% (I could be wrong but it was low) of ALL Muslims would be affected, not to mention the order did not mention “religion” But areas affected by terror & were impossible to vet, hence WHY Iraq was added back on.
If we are not able to protect our borders we will no longer have a country, Germany is JUST NOW admitting the crisis they have. Angela Merkel is facing some serious questions, President Trump is trying to prevent that.
Everything I’ve read that did not start with Fox News reports indicates that border intrusion is not a big problem for this country. Having said that everything I’ve read that did not start with Fox News reports indicates that the Executive has almost unlimited authority with respect to who can cross our borders. Only this president can take an assumed authority and convert it to a controversy. Deal maker indeed.
Everything I’ve read that did not start with Fox News reports indicates that border intrusion is not a big problem for this country.
Then I suggest you expand your reading habits.
Having said that everything I’ve read that did not start with Fox News reports indicates that the Executive has almost unlimited authority with respect to who can cross our borders.
Only this president can take an assumed authority and convert it to a controversy. Deal maker indeed.
The Supreme Court decision would be proof the conversion into a controversy was not his doing.
How’s that for yammering. I believe I addressed all your sentences too.
Again, you’re welcome. 🙂
You are so needy
Frankly any other president wouldn’t have to work so hard. Trump has a gun that shoots only footward.
Well, when you’re confronted by snakes, that would seem reasonable.
You yammer about sentence B yet stay silent about sentance A. Your dear leader has taught you well.
Sentence A was not yammer-worthy; sentence B barely made the cut.
Anyway, you’re welcome.
I was surprised that Kagan did not vote with the majority. She has gone completely to the dark side.
No court should ever rely upon political promises to render a verdict in any case. Everyone knows that a political promise isn’t worth the paper it isn’t printed on. If courts were to rely upon these statements, most of which are made in the presence of their supporters, they would be elevating these comments to an extreme level. Politicians always speak more strongly in the presence of their rabid supporters, and will sometimes go beyond what is possible in making their points. Since President Trump didn’t put those words into his Executive Order, there is no reason for a court to even consider them.
On a more important note, Congress in 1953 granted the President sole discretion in the issue of defense of the homeland. In doing so, that means they have spoken, a rebuke of the Senator from Hawaii. This means that the President does not need to consult Congress or any court before issuing an Executive Order along these lines, since these are usually of an emergency nature. The Vietnam War showed what happens when a President is hog-tied by having to get approval for every type of military action.
My only question is, why wasn’t this decision 9-0?
For it to not be a 9-0 decision gives credence to the statement that there are several members of the Supreme Court that don’t understand the English language.
Amen, I am appalled that this wasn’t a 9-0 decision. The law is clearcut. Doesn’t matter what someone’s emotion is or was. The proof is the actual order and it was 100% constitutional. Those 4 nays should be removed from the court for their obvious ignorance and without using any legal precedence. Shame on them.
another good decision by the SCOTUS.
How in the world do 4 SCOTUS Justices rule against the President on this outside of just plain being partisan Democrats???
This is what happens when otherwise sensible people vote for Democrats. You get total idiots like Sotomayor on the bench.
Let’s reframe it SqueeKKK, using your words with the exception of what’s in brackets:
“How in the world do  SCOTUS Justices rule [for] the President on this outside of just plain being partisan Republicans???
“This is what happens when otherwise sensible people vote for [Republicans]. You get total idiots like [any Republican nominee] on the bench.”
What’s in that corn cob pipe of yours, Squeeker?
It’s the unconstitutional 13th, 14th, 15th and 19th amendments.
The judicial branch is eminently capable of reading and understanding the manifest tenor of the Constitution. The judicial branch cannot use incompetence as a defense. Far too often the judicial branch acts politically. Today the SCOTUS overturned lower courts for what were blatant political acts. Last week the SCOTUS overturned itself. Assigning validity to “precedents” is ludicrous.
The power in America resides with the People as represented by Congress. The judicial branch has no authority to act politically or legislate, and it commits crimes of high office when it “legislates from the bench.” Congress has the power and duty to impeach all officers of the United States for crimes of high office such as the abuses of power exposed by the decisions of the SCOTUS today and last week.
Congress must do its duty. Congress must enhance and accelerate the impeachment process to accommodate the increasing level of abuse of power in America (DOJ/FBI/INTEL/Obama) with emphasis on the burgeoning political acts of the judicial branch.
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
I’ll check to see if Khizr Khan repeats his false claim that he’s barred from traveling to Canada.
He trotted out that bogus claim on the heels of a previous development re the travel restriction issue.
A victory for the “plain meaning rule.”
“plain meaning rule.”
How about a crime of high office for the eminently egregious, subversive and treasonous usurpation of the power of the legislative branch resulting in impeachment and conviction.
Members of the judicial branch must pay a most severe price for seizing power it is not afforded by the Constitution.
“Legislating from the bench,” not dissimilar to a military invasion, must be considered capital treason.
So, you load the Supreme Court with your guys and you get what you want. It’s no more complicated than that. For almost a year, the Republicans kept the court a judge short so they could take a chance on a Republican Presidential win. This is the result of that sort of manipulation.
Can’t wait till the Democrats tell Trump, sorry we have a election coming up can’t do a thing for ya. Then the nation will hear what hypocrites they really are.
If you recall, Cannuck, the Democratic congressional caucus in association with Washington advocacy groups engaged in a campaign of libel and slander against Republican nominees to the Court in 1969, 1987, and 1991 and managed to sink two of these nominations. They’ve never been repaid in kind. They merely refused to act on a Democratic nominee. Democrats obstructed a number of Circuit Court nominees during the Bush Administration. You want those rules, you get those rules.
If you think calling me a Canadian is some sort of insult, I would first have to value your opinion. Besides look up which President has the most nominees blocked, court or otherwise and Dubya got a lot more hearings and confirmations then Obama. I can be very civil, but if you insist to call me a liar about my family then we have nothing more to say to each other.
we have nothing more to say to each other.
Is that a threat or a promise?
Short of a horrible curse that keeps her miserable self alive, that dingbat judge Ruth Bader Ginsberg, will not last another six years, and at a minimum Trump will be able to put another conservative – and a constitutionally minded – minded judge in. Then of course there’s Kennedy. Your problem is that you people don’t care much for the constitution or the rule of law, your idea of law is that law should be whatever you feel it is, not what it’s written as. Those days are ending.
Those days aren’t likely to end as long as the culture of the law professoriate, BigLaw, and the appellate judiciary is what it is. (Unless, of course, we have the sense to geld them as we should). Ginsburg is another pathetic Washington figure clinging to office. Robert Byrd was more gruesome, but she’ll do for a fine example as will Kennedy. The appellate courts should have only an ancillary role in the making of public policy and judgeships should be readily relinquished. The only recent Justices who have done so have been David Souter, Lewis Powell, and Warren Burger. Souter made it a point to stick around until a Democratic President could appoint his successor and Powell until a Democratic Senate could vet his successor. If we had a healthy political culture, these guys would clear out at the 20 year mark or 30 year mark provided they’d reached the age for full Social Security.
SCOTUS should have a mandatory retirement age of 70.
I agree. The Democrats want judges who will do what the Democrats say, Republicans want judges who will do what the law says. I”ll take the latter. It’s remarkable how close left side of the court came within a single vote of repealing the second amendment in Heller. The entire left is extreme.
And the rule of law was stepped on and threw out with the BushVGore case in states rights. They made a law for one person to use and only one…Dubya.
Seven of the nine judges on the court agreed with the decision in that case and five joined the majority opinion. The case ended up in the federal supreme court because of the freebooting of the the Florida Supreme Court, who continually interfered with trial judges and local canvassing boards attempting to get their work done.
It isn’t a coincidence that justices like Ginsburg, Kagan, Sotomayer, Breyer were appointed by Democratic presidents.
Or that Thomas, Roberts, Alioto, and Gorsach (sp?) were put on the bench by Republican presidents.
I left out Justice Kennedy, a so-called “swing vote justice.
I think he’s a Bush 41 appointee.
So “loading the court with your guys” has been pretty much the norm for at least 30 years.
Kennedy was Reagan’s 3d choice for the seat previously held by Lewis Powell. The culture of the elite bar is wretched. Nixon’s appointees were haphazardly vetted and had to get by a Democratic Senate. Same deal with Ford’s sole appointee. Reagan’s were more carefully (if imperfectly) vetted and he had a Republican Senate for six years. The 1987, 1990, and 1991 vacancies were filled with Republican nominees who made it past a Democratic Senate. David Souter immediately defected to the liberal side of the court, Anthony Kennedy seems to have no abiding principle of jurisprudence other than the preferences abroad within the social circle of Anthony Kennedy and Clarence Thomas has crafted a strict formalist approach. Thomas passed the Senate only just barely. He lost the votes of two Republicans who commonly voted with the Democrats on social questions (one of whom later left the Republican Party and one of whom was later discovered to have Velcro mittens). He picked up the votes of 11 Democrats who had their issues with Democratic orthodoxy (8 were from the South, one from around St. Louis, one from Nebraska, and one from Tucson).
TS to Dance,
The turning point of the hyper-partisanship involved in SC appointments was probably the Bork nomination and hearings.
Then the Thomas/ Anita Hill saga about 5 years later.
Those who bemoan the recent “politicalization” of selecting SC Justices would do well to look at those turning points.
That was the essence of what I wrote. However, sometimes the load smells and this is one of those times.
You don’t know what you’re talking about.
The New York Times analyzed the court’s opinions in 2015 and called it “a left leaning court”. The analysis showed that the four liberals vote as a bloc on hot button social issues, and then they pick off one of the other five. The only thing that’s changed since the New York Times called it a “left leaning court” is that Scalia, perhaps the most conservative member, was replaced by Gorsuch.
In 2017, the number of unanimous opinions was almost a record, the number of 5-4 decisions was well below the average since the 1940s, and 89% of the votes were for the majority opinion. In that article, The New York Times said the Supreme Court set a “Modern Record for Consensus”.
Looking forward to any semblance of facts or data you can manufacture to support your opinion.
Courts have long shown near-complete deference to the President on national security issues. Cases like those involving the “state secrets” doctrine, along with the entire FISA process, sometime appear to reflect a process of non-reviewability. Had the 9th Circuit decision stood, it would have been revolutionary. One can argue whether such broad deference is good policy, but anyone arguing that this decision is somehow revolutionary is either disingenuous or — more likely — suffering for Trump Derangement Syndrome. What is shocking is to see 4 out of 9 Justices have that infliction.
Justice Roberts, on p. 13 of his decision, says the president is not required to prove that his travel ban is a useful security measure or that it makes any sense. The law gave the president broad authority to do what he says is best for national security. https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf
Justice Roberts, on p. 13 of his decision, says the president is not required to prove that his travel ban is a useful security measure or that it makes any sense.
IOW, the final call is the President’s and not the judiciary’s. I know many lawyers fancy they ought to have a franchise to vet everyone else’s activities, but that’s neither just nor prudent. (Also implicit in that is a rebuke tthe leftoid lawfare artists who are trying to insinuate into law in this country the notion that any foreigner has a right to travel here).
The only dangerous imbalance has been the democrats and their Pravda like alliance with MSM refusing to report unbiased information.
As I have mentioned previously the democrats have and continue to out themselves and show Americans who they really are. Keep it up Maxine, Pelosi, Schumer and all you Hollywood dopes, we love it.
Obvious call here unless you’re blinded by identity politics.
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