The Travel Ban and The Court’s Red Hen Moment

Supreme CourtBelow is my column in The Hill newspaper on the Supreme Court’s decision upholding the travel ban in Trump v. Hawaii.  While the case has been buried in the crush of coverage over the resignation of Justice Anthony Kennedy, the opinion is a shot across the bow for lower courts in their treatment of the relevant record for such disputes. It also answers some lingering questions over the conduct of key figures like Sally Yates.

Here is the column:

The Supreme Court ruling in Trump v. Hawaii today was more than a predictable reversal of the 9th Circuit appeals court in its dubious ruling that the travel ban was unconstitutional. As some of us noted from the outset of this litigation, the precedent heavily favored President Trump.

What was unprecedented was the degree to which courts relied on campaign statements and tweets by Trump to rule that the entry limits were based on religious animus. The ruling properly returns the courts, and others, to basic principles of legal process. Call it “The Red Hen moment” for the courts, where judges, appalled by Trump’s inflammatory and reckless comments against Muslims, refused to extend him the same deference shown to predecessors like former President Obama. The response from judges, however, seemed more visceral than analytical in ignoring the nondiscriminatory rationales cited by agencies for the policy.

The Supreme Court’s decision is, obviously, a major win for Trump, but it also is a major victory for those who believe courts must rule within the confines of the traditional record of review. CNN was quick to declare that this presidential order was “very different” from the original order. Despite my criticism of the original order — which was poorly drafted, poorly executed and poorly defended — it is not true that this decision was based on different questions. The challengers emphasized that the third order was based on the same threshold questions raised in the first order. The Supreme Court specifically hit the same flaw found in the first, second and third opinions, which was the reliance on the statements made by Trump on the campaign and over Twitter.

The Supreme Court ruled, “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.”

The dissenting justices still maintained that, regardless of the record created by the agencies, the president’s comments should be treated as dispositive as showing that the policy was “motivated by anti-Muslim animus.” There is little record that the agencies could create to overcome such statements in the view of the four dissenting justices. That is a dangerous approach for courts in reviewing policies and laws. It would allow jurists to pick from an array of public comments as determinative factors in review. While such comments have been given weight in racial gerrymandering cases and some other areas, the reliance by the 9th Circuit and the dissenting justices would have been unprecedented.

While many have correctly chastised Trump for departing from the traditional decorum and conduct of presidents, it is equally true that these courts departed from traditional review of courts in alleviating these comments over independent agency rationales. Notably, Chief Justice John Roberts and the majority clearly telegraph their disagreement with the president’s comments, as have many of us. However, this is about court decisions. It is not commentary. This is the point and always has been the point, from the first travel ban decision.

The lower court judges are not the only ones rebuked in this decision. The ultimate “Red Hen moment” was the order of former acting Attorney General Sally Yates to bar Justice Department lawyers from defending the policy. Indeed, if anything, this was a “Red Hen moment” in Yates refusing service. The difference is that Yates denied a president the service of thousands of Justice Department lawyers in defense of a federal policy.

I was highly critical of the actions Yates took as acting attorney general and supported her termination on the basis of her order. Yates had only a few days left in federal service when she decided to take her unprecedented stand. That obstruction resulted in her being instantly declared a “hero” by Trump critics who ignored the implications of other officials in the future refusing to defend laws or policies more to their liking, from environmental protections to workplace safety laws.

It was manifestly untrue that there were not good faith arguments to support the policies as shown by dissenting lower court judges, and now a majority of the Supreme Court. Yates manufactured the conflict by ignoring review of the career staff of the Justice Department office of legal counsel, which found the president did, in fact, have the authority. Yates simply said that she was not convinced that the order was “wise or just” or “lawful.” She simply declared that she was acting on her duty to “always seek justice and stand for what is right.”

The Supreme Court decision upholding the travel ban is a shot across the bow of all lower courts that they must insulate themselves from the often incendiary comments of this president. The question is not how he views his office but how judges view their own.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

36 thoughts on “The Travel Ban and The Court’s Red Hen Moment”

  1. If this is a “Muslim ban” as it’s been rhetorically popular to call it, it’s not a very good one. It only covers 8% of the world’s Muslims. Notably, the world’s biggest Muslim countries (Indonesia, India, Pakistan, Bangladesh, etc) are nowhere to be found on the list. If this is a Muslim ban, why are they allowed to come?

  2. This is a very good article regarding the decision. It has a little bit for everyone. Justice Kennedy’s words should be heeded by this administration:

    the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise, because an anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.

  3. I don’t think the 9th Circuit was like that harpy who runs the Red Hen. She was honest in her hateful words. The Ninth Circuit just lies their way through the rebuke.

  4. Trump’s travel ban is still a lousy idea. Just because the authority behind Trump’s travel ban is “constitutional” doesn’t make it a good idea. Refusing service to asylum seekers is America’s Red Hen moment. Trump and his MAGA cultists diminishing America’s role as leader of the free world, the last best hope for mankind and a shining city on a hill is something of which Vladimir Putin great approves. What has Trump done with our decent respect for the opinions of mankind?

    1. Fair enough but it is legal. The way to change things is through elections, not distorted interpretations of the law.

    2. I love this new twist of illegal aliens sneaking across the border are suddenly “asylum seekers”. Did you come up with that language manipulation on your own, or was it distributed in this week’s talking points?

      1. Presuming that Trump’s travel ban is being applied to “people sneaking across the border” is a twist in Zorro Zorro Nevada’s mind.

        1. Your reading skills suck. You said, and I quote directly from your comment:
          “Refusing service to asylum seekers is America’s Red Hen moment.” You’ve been referring to the border issues with your canned “asylum seekers” for several days. You need to come to grips with the fact that you are not a fraction as clever as you think you are. Nothing more than a bitter sore loser, actually.

  5. I wish the President could change out the 9th district weenies and get people who understand and will abide by the law.

  6. Now I am going to be forced to read the whole decision. I was trying to avoid it. 😉 I do appreciate the shot across the bow to the lower courts.

  7. Yates was correct in that the original order (and the one that followed) was unconstitutional. The one that SCOTUS now approved relies on us believing what the words on the paper say and not what we all know they mean. Look for Trump to expand and shrink the listed countries based on whims and how much they flatter him.

    1. The one that SCOTUS now approved relies on us believing what the words on the paper say and not what we all know they mean.

      No. It relies on the American people to understand the difference between campaign rhetoric and actual governance. Yates and her ilk in the Justice Department have the right to consider the rhetoric anyway they please, but they are duty-bound to enforce orders that are constitutional. Voters have same right and while they should know the difference between rhetoric and governance, they (you) clearly have no obligation to be civically literate.

      1. Olly – The “campaign” ended in November 2106, the “rhetoric” was going on and continues to this day. I’m reminded of a line from Shawshank Redemption, “How can you be so obtuse?” And what was before Yates was Unconstitutional.

        1. You have deluded yourself to believe the media’s lies. If it is a “Muslim” ban as the frauds claim, why would North Korea be on the list. I dare to say there are few, if any, Muslims in North Korea. And the world’s largest and most populous Muslim nation is Indonesia, which is not included in the travel ban.

          The whole “Muslim” ban outcry is pure hysterical fraud.

          1. I have deluded myself to believe Donald Trump in one of the few times he told the truth. North Korea was a throwaway to make it look better. Their government doesn’t allow most of their citizens to come here anyway.

            1. The possibility has not yet been eliminated that Trump’s travel ban might actually have been Putin’s idea intended to corral refugees from Syria and Libya into NATO countries for the sake of fomenting a Renaissance of right-wing extremist political parties to undermine opposition to an eventual restoration of The Russian Empire. Or not. We do have some reason to suspect that the first draft cover story for the Trump Tower meeting (i.e. they discussed “adoptions”) was given to Trump by Putin during their little chat at the G20 summit.

        2. I’m reminded of a line from A Few Good Men, you know the one: You can’t handle the truth!

          The fact is Yates was obligated to enforce the order because she knew it was within the president’s authority. That’s assuming she intended to actually honor her oath of office. She didn’t need to like the president. She didn’t need to like his rhetoric. She needed to follow the law or resign from her position. I realize that honoring an oath means nothing to you. For you, it’s all about the ends. Damn, you’d aspire to be obtuse if you weren’t so willfully ignorant.

          1. Part of that oath is to defend the Constitution against all enemies, foreign and DOMESTIC. Sounds like refusing to implement an unconstitutional order is doing just that.

            1. Sounds like refusing to implement an unconstitutional order is doing just that.

              LOL! Damn you are desperate. 🙂 However the order was never ruled unconstitutional. Poorly crafted: Yes. Did it require modification? Yes. Was it ruled constitutional? Yes. Case closed.

              1. The first order, the one Yates objected to, had a nationwide Temporary Restraining Order implemented against based on among other things an assertion it was unconstitutional. The court would not grant a stay because the government was “unlikely to win at trial.” The government ultimately acknowledged as much by withdrawing the flawed (unconstitutional) order and replaced it slightly less but still unconstitutional version two. If it was Constitutional, why did it not become law?

                1. Good article.

                  Injunctions that prohibit the Executive Branch from applying a law or policy against anyone…have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.

                  I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.


    2. If you want to start relying on evidence not in the record, then we can do that too. And you won’t like the result. Be careful what you wish for sir.

  8. I suppose it is tremendously old fashioned of me to expect the judges to take the president at his word.

    Sorry Jonathan Turley, the Founding Fathers would have excoriated you.

    1. You shouldn’t judge (justice system) people by what they say, but what they do. Just because someone says they are going to do something, doesn’t mean they will do it.

      This is why our political system is screwed up, too many people actually believing what politicians say, and ignoring what they do, this isn’t party specific.

      As the old saying goes; You know a politician is lying when their lips are moving.

      1. The new saying goes; You know when a politician was lying when he is elected.

        1. Darren Smith – they start lying when they announce for office.

      2. Ron said, “You shouldn’t judge (justice system) people by what they say, but what they do. Just because someone says they are going to do something, doesn’t mean they will do it.”

        In our justice system jurors routinely judge the veracity of testimony given by witnesses who affirm or swear that they will tell the truth, the whole truth and nothing but the truth, but who are nonetheless subject to cross-examination to test their veracity. And some witnesses are subsequently prosecuted for perjury.

        Ron also said, “This is why our political system is screwed up, too many people actually believing what politicians say, and ignoring what they do, this isn’t party specific. As the old saying goes; You know a politician is lying when their lips are moving.”

        So Trump was lying when Trump promised a ban on Muslims entering the country. Or else Trump merely failed to keep Trump’s promise to impose a ban on Muslims entering the country. Or else too many people actually believed what Trump said when Trump promised a ban on Muslims entering the country, because our political system had already been screwed up by previous politicians who had moved their lips, such that, Trump had no choice but to lie by lip moving when Trump promised a ban on Muslims entering the country; in which case, it’s not really Trump’s fault that Trump failed to keep his promise to impose a ban on Muslims entering the country. In other words, you shouldn’t judge Trump, because this lying by lip-moving broken promise routine isn’t party specific.

        1. Evidence in the record. A second year lawyer learns this but a typical journalist is somewhere far south of that in intellect. Or they would have been lawyers in the first place.

  9. From what i remember of the Yates conduct she, the agency attorneys, defended the policy for at least two days before balking. My guess, and that is all it is, she opted for an offer to serve the D party. If she differed so much with the policy, resign. Let the president, whomever it is, appoint/nominate someone new.

  10. Government has no authority to dictate the outcome of freedom including freedom of thought, belief, publication and assembly which, by definition, constitutes discrimination.

    Sally Yates signed a FISA court application which contained the false and fabricated “dossier.”

  11. Excellent commentary, and some facts that I wasn’t aware of, including about Yates behavior.

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