“Travel Ban” Well-Within Trump’s Authority, Says Divided SCOTUS


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

Related Post Roulette

12 Responses

  1. Avatar j r says:

    The predictable split of the Court on this matter portends the inevitable split between the left and right leaning citizenry, as many decisions this term have done. With the strong, provocative rhetoric from our President which underlies the whole thing, it is hard to reconcile the two sides.

    I’m torn on this one as I believe that the dissenters are correct on the principle, but the majority may be right on the law. So, I agree that these things can be hard to reconcile, but I don’t see that there is really any other option. You need a consensus to effectively govern a democracy. A lot of political partisans display a mentality of Beat the enemy! Give no quarter! It’s a nice enough fantasy, I guess, but completely untenable. One half of the electorate is never going to decisively beat the other half. That didn’t even happen after the Civil War.Report

    • Avatar Chip Daniels in reply to j r says:

      Per my comment on the other thread, the “other half” grows and shrinks with time.

      The split we see now isn’t immutable and eternal.

      Just as happened with interracial marriage, school integration and a host of other issues, opinions change and that “half” reduces to an impotent minority.Report

    • Avatar LeeEsq in reply to j r says:

      This isn’t the first time that two parts of the Constitution were in conflict. I’m willing to concede that that the Constitution gives Congress plenary power over immigration through its power to create a uniform rule of naturalization. I’m also going to concede that Congress has power to delegate this responsibility to the President. However, a fundamental liberty, freedom of religion, is at stake explicitly, and race is at issue implicitly since no majority white country is effected by the travel ban. I think even considering Congress’ plenary power over immigration, any restriction based on religion or race needs to survive strict scrutiny. It must be narrowly tailored to meet a compelling government interest. The travel band is not because it effects people who are not in in danger of being terrorists and is not the least restrictive means possible to protect America from terrorism.Report

      • Avatar Dark Matter in reply to LeeEsq says:

        Doesn’t Congress have a long history of pretty openly racist immigration policies? Does that mean the Supremes should be tearing up those policies and writing their own?Report

    • Avatar Dark Matter in reply to j r says:

      the dissenters are correct on the principle, but the majority may be right on the law.


      And it’s very dangerous that we’ve got Judges, even 4 Supremes, who apparently feel free to ignore the law when they don’t like the outcome.Report

      • Avatar j r in reply to Dark Matter says:

        Eh, I’m not buying. The United States has a long history of officials, elected and not-elected, ignoring the law. This dissent doesn’t even rank a comment among the worst.

        It’s far more dangerous that there is an idiot in the White House and a sizable enough portion of the electorate to enable that idiot.Report

  2. Avatar Mike Siegel says:

    I agree with the decision. As Scalia said, “stupid but Constitutional” The law clearly gives the President this kind of authority. I understand the dissenter’s point, though: that you shouldn’t separate out the clear intent of the law. Just disagree with it.Report

    • Avatar InMD in reply to Mike Siegel says:

      Concur. It’s bad policy but I see this as basically an issue of statutory construction. There’s a strong argument to be made that we’ve invested way too much power in the executive but these are political decisions and the constitutional jurisprudence about delegation of power isn’t changing any time soon. The solution is to vote out Trump.Report

  3. Avatar Burt Likko says:

    As I wrote on the Twitters yesterday, I think Sotomayor’s point in dissent is trenchant: sometimes, under a rational basis review, we seem to demand perfection, or close to it, in the way a public official addresses an issue.

    Masterpiece Cakeshop reversed an otherwise-apparently-righteous finding of violation of a public accommodations law based largely upon the stray remarks of one regulator at a level of intermediate review. I say “otherwise-apparently-righteous” because the Masterpiece Cakeshop court never got to the point of balancing of speech or free exercise rights; the stray remarks that Christianity had been invoked in the past to justify horrible things were evidence of such great bias and animus that the Court reversed on them alone. I also say that because very quietly, the Court declined another case very similar to Masterpiece Cakeshop that was apparently free of this procedural taint, letting the state finding of a violation of antidiscrimination law stand.

    in Trump v. Hawaii, however, we have not just stray remarks but overt, forceful, and repeated expressions of political will which are, if not pointedly disregarded, pointedly dismissed as not sufficiently probative to carry the day. The phrase “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States. Until we figure out what the hell is going on.” cannot possibly be interpreted as other than a religious-based test for entry into the United States which is contrary to explicit Congressional law and the Constitution. The dissents focus on them and they were a major point of the advocacy in this matter. But the opinion gives them short shrift, pointing out that a different President not suffering from religious animus could conceivably have enacted this Order.

    Some rational basis reviews are more searching of evidence of public official bias than others, apparently. It’s an odd coincidence indeed that the fulcrum upon which the “very searching” and “very deferential” standards of what otherwise would be two structurally similar rational basis analyses appears to rest upon the alignment of the prevailing cultural majority.Report

    • Avatar InMD in reply to Burt Likko says:

      This seems like its looking really hard to find something I’m not sure as there. Both of these decisions are consistent with the Roberts court’s dedication to avoiding constitutional decisions which given the gravity is no bad thing. We saw the same thing in National Federation of Independent Business with the ACA mandate decision.

      Even after Master Cakeshop there’s no evidence that duly enacted prohibitions on same-sex discrimination in public accommodations will be held unconstitutional for 1st Amendment reasons. Here the court declined to find something in a facially neutral order clearly permitted by the statutory framework. There are times I agree that the court isn’t as willing as it should be to reverse public policy decisions. But we also have to recognize that every time it does that it puts its own legitimacy on the line. To me this one isn’t even close, when the obvious answer for fixing it is voting out the incumbent when we get the opportunity.Report

    • Avatar Dark Matter in reply to Burt Likko says:

      “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States. Until we figure out what the hell is going on.” cannot possibly be interpreted as other than a religious-based test for entry into the United States which is contrary to explicit Congressional law and the Constitution.

      There is a large disconnect between what he said there, i.e. “No Muslims”, and what his order says, which is effectively “People with governments which can/will not control terror movements”. One can reasonably question whether failed states have the ability to properly vet people, or whether Iran would.

      For all the talk of Muslim majority countries, this order effects 7% of Muslims, and it’s effectively Iran plus failed states and/or territories at war with us. A normal President could do this, if memory serves Carter did do this.

      If a normal President could do this without it being viewed as racist, then this action isn’t clearly racist by itself… which means the lawsuit is mostly about punishing Trump for being a racist and/or part of a political tussle. Trump as a racist shouldn’t be setting immigration policy, but the courts will get dirty if they step into a political/cultural shit throwing match.

      What is the alternative to having Trump carry out his duties here? Have the Courts set immigration policy? Send the order back to Trump so he can sanitize it to the point where a normal President could reasonably have issued this order? Have the courts say this President isn’t allowed to defend the country from Terrorism? Insist that the President resign because as a racist he can’t carry out his duties? Have him say he’s not a racist (again) and then have him reissue the same order?

      The problem isn’t the order, the problem is Trump, and fixing Trump is beyond The Court’s mandate.Report