SCOTUS Travel Ban Ruling Legally Sound
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A large crowd rallies on the steps of the U.S. Supreme Court, led by top Democrat lawmakers, to denounce President Donald Trumps executive order banning immigration from 7 Muslim-majority countries, on January 30, 2017.[/caption] When he was running for president, Donald Trump promised to ban immigration of all Muslims to the United States. After the election, Rudolph Giuliani claims that the president-elect convened a committee of lawyers to tell him how to do it. It turns out that it couldn’t be done. After a great deal of initial flailing about, including two hastily drafted executive orders overturned by the courts, the lawyers took over, and Trump had to settle for something between a gesture and a stunt as the most the courts could be persuaded to accept. The Supreme Court’s 5-4 decision in Trump v. Hawaii upholds his third effort by one vote, but it does it on the merits. The rule of law, such as the law is, has prevailed. The problem is that the settled law the court’s majority applied is itself xenophobic, grudging, arbitrary and indifferent to constitutional norms that apply within the United States. Trump v. Hawaii was ultimately governed by Justice Jackson’s well-known concurring opinion in Youngstown, which states that the president’s power to issue executive orders is at its broadest where, as here, he is specifically authorized to do so by statute. Here, Immigration and Nationality Act § 1182(f) expressly authorizes him to “suspend the entry of any alien or class of aliens” whenever he finds that their entry “would be detrimental to the interests of the United States.” In Sale v. Hatian Centers, Inc., the court recognized that § 1182(f) authorized President Clinton to use the Coast Guard to intercept Haitian refugees and prevent them from landing in the United States to claim asylum. Early in the litigation, the government unsuccessfully took the high-flying position that the president’s discretion under § 1182(f) was unreviewable. By the time the case got to the Supreme Court, the government had arrived at a position more palatable to the judiciary. Kleindienst v. Mandel (1972) had held that the government could use § 1182(f) to bar a radical Marxist lecturer from entry as long as it had a “good faith facially valid reason” for the decision. In Kerry v. Din (2015), Justice Kennedy used the Mandel standard to uphold exclusion of a former official of the Afghan Taliban government as a former member of a terrorist organization. The government’s problem was to come up with a “good faith facially valid reason” other than the supposed intrinsic danger of Islam that Justice Kennedy would accept as supporting suspension of all immigration from five predominantly Muslim countries while distinguishing all the others not subject to the ban. The government had the indispensable benefit of the “plenary power” doctrine, under which the Supreme Court has long held that no alien has a constitutional right to enter the United States and that Congress can exclude aliens on any grounds it chooses, including racial, ethnic and political grounds that would be unconstitutional if applied within the United States. In particular, Congress can and has excluded aliens on the basis of their political beliefs. The current statute, § 1182(a)(3)(B) permits exclusion of any alien who has or is reasonably believed to be likely to engage in “terrorist activity.” That statute is broad enough to exclude both potential terrorist actors and anyone who advocates that others have a religious duty to engage in terrorist acts. Its constitutionality was not at issue in the case. Enforcement of this and other exclusionary statutes requires that consular officials be able to investigate applicants before issuing visas. In particular, it requires them to determine whether the applicant is a present or potential terrorist or terrorist sympathizer. That, in turn, requires the cooperation of local governments to provide background information. After the first hasty versions of the suspension were struck down in the lower courts, the government went back to the drawing board and, after a multi-agency review process, identified six Muslim countries and two others where local cooperation was not forthcoming. The six predominantly Muslim countries subject to the final version of the ban either have governments that are hostile to the United States, i.e. Iran, or are in a state of rebellion and anarchy where government does not operate effectively, i.e. Chad, Libya, Somalia, Syria and Yemen. In contrast, the United States is on friendly or at least tolerable terms with the governments of populous Muslim-majority states unaffected by the ban, such as Saudi Arabia, Egypt, Turkey, the UAE, Pakistan, Bangladesh and Indonesia, as well as countries with substantial Muslim minorities like India and the states of Western Europe. From all of these it can expect local cooperation in the vetting of visa applicants. From the governments of predominantly Muslim countries subject to the ban, it contended that it cannot. While one can certainly criticize the reasoning behind this selection of countries—after all, 15 of the 19 Sept. 11 hijackers were Saudis—these administrative and foreign relations concerns are enough to satisfy the highly deferential rational basis standard of review in Mandel. Moreover, it leaves immigration of the overwhelming majority of Muslims from all over the world unaffected. Despite the president’s oft-repeated anti-Muslim words, the government’s eventual acts were narrow enough to get by. Justice Sotomayor’s dissent would have reviewed the suspension by the same standards applied to a claim of anti-religious animus under the Free Exercise Clause within the United States. That position commanded only two votes; her own and Justice Ginsburg’s. It would have required the court to revisit and repudiate almost 150 years of precedent that the Constitution does not confer on any alien the substantive right to enter the United States—precedent applied as recently as 2015 in Kerry v. Din. The majority opinion followed settled law. As Justice Kennedy’s concurrence makes clear, in the area of foreign relations, he was willing to set aside only acts “inexplicable by anything but animus.” Minimal rationality would satisfy, and the government ultimately delivered enough minimal rationality that Justice Kennedy could find a justification other than animus. The president may well have preferred far more, but he had to settle for what little his lawyers could defend.
