The Travel Ban, the Law, and What’s ‘Right’

WASHINGTON — The Supreme Court upheld President Trump’s ban on travel from several predominantly Muslim countries, delivering to the president on Tuesday a political victory and an endorsement of his power to control immigration at a time of political upheaval about the treatment of migrants at the Mexican border.

In a 5-to-4 vote, the court’s conservatives said that the president’s power to secure the country’s borders, delegated by Congress over decades of immigration lawmaking, was not undermined by Mr. Trump’s history of incendiary statements about the dangers he said Muslims pose to the United States.

Writing for the majority, Chief Justice John G. Roberts Jr. said that Mr. Trump had ample statutory authority to make national security judgments in the realm of immigration. And the chief justice rejected a constitutional challenge to Mr. Trump’s third executive order on the matter, issued in September as a proclamation.

The court’s liberals denounced the decision. In a passionate and searing dissent from the bench, Justice Sonia Sotomayor said the decision was no better than Korematsu v. United States, the 1944 decision that endorsed the detention of Japanese-Americans during World War II.

She praised the court for officially overturning Korematsu in its decision on Tuesday. But by upholding the travel ban, Justice Sotomayor said, the court “merely replaces one gravely wrong decision with another.”

The court’s travel ban decision provides new political ammunition for the president and members of his party as they prepare to face the voters in the fall. Mr. Trump has already made clear his plans to use anti-immigrant messaging as he campaigns for Republicans, much the way he successfully deployed the issue to whip up the base of the party during the 2016 presidential campaign.

Mr. Trump, who has battled court challenges to the travel ban since the first days of his administration, hailed the decision to uphold his third version as a “tremendous victory” and promised to continue using his office to defend the country against terrorism, crime and extremism.

“This ruling is also a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country,” the president said in a statement issued by the White House soon after the decision was announced

The vindication for Mr. Trump was also a stunning political validation of the Republican strategy of obstruction throughout 2016 that prevented President Barack Obama from seating Judge Merrick B. Garland on the nation’s highest court after the death of Justice Antonin Scalia. Justice Neil M. Gorsuch, Mr. Trump’s choice to sit on the court, was part of the majority upholding the president’s travel ban.

The decision came even as Mr. Trump is facing controversy over his decision to impose “zero tolerance” for illegal immigration at the United States’ southwestern border, leading to politically damaging images of children being separated from their parents as families cross into the country without proper documentation.

But as Mr. Trump celebrated his travel ban victory, a federal judge in California ordered the government to stop separating children from their parents at the border and to reunite families already separated.

Late Tuesday night, the judge said that all families must be reunited within 30 days and that children under 5 must be returned to the custody of their parents within two weeks.

The judge’s order came as the president faces a second legal challenge about the family separations. Seventeen states and the District of Columbia filed a lawsuit on Tuesday in federal court seeking to stop the practice.

Mr. Trump and his advisers have long argued that presidents are given vast authority to reshape the way that the United States controls its borders. The president’s attempts to do that began with the travel ban and continues today with his demand for an end to the “catch and release” of unauthorized immigrants.

In remarks on Tuesday in a meeting with lawmakers, Mr. Trump vowed to continue fighting for a wall across the southern border with Mexico — his favorite physical manifestation of the legal powers that the court says he rightly wields.

“We have to be tough and we have to be safe and we have to be secure,” he said, adding that construction of the wall “stops the drugs.”

“It stops people we don’t want to have,” the president said.

Several hundred angry protesters gathered in Washington on the court’s marble steps with signs that read, “No Ban, No Wall,” “Resist Trump’s Hate” and “Refugees Welcome!”

The Supreme Court’s ruling contributes to the legitimization and mainstreaming of anti-Muslim bigotry. But the court isn’t tasked to make moral judgments about the law.

ANDREW CHUNG / REUTERS

In January 2017, when President Donald Trump’s so-called Muslim ban was first announced, I was passionately against it. It was one of the most frightening texts I’ve read from U.S. government officials in my lifetime. The Supreme Court just upheld the third iteration of the travel ban in Trump v. Hawaii, and I find myself in the odd position of opposing the court’s ruling on personal and moral grounds, while also thinking it was a legally plausible interpretation.

Like most political developments of the Trump era, there is a tension between having the “right” position and having the “correct” position. A pure anti-Trump position would entail opposing the court’s ruling regardless of its substantive content. This feels morally right—and it may even be the morally right—but that doesn’t necessarily make it correct. The Supreme Court, unlike Congress, is not tasked to make moral judgments about the law, at least not explicitly.

The first version of the travel ban, which, among other things, appears to have been intended to troll liberals, explicitly discriminated based on religion. The very fact of being Muslim was grounds for scrutiny. One clause, in particular, effectively imposed a religious test. Refugees facing religious persecution could be admitted but only if “the religion of the individual is a minority religion in the individual’s country of nationality.” The revised version, issued in September 2017, omits such language, and incorporates two non-Muslim countries, North Korea and Venezuela. Regarding Syrian refugees, this means that, in theory if not necessarily in practice, entry restrictions on Syrian refugees would apply equally to Muslims and Christians alike. Accordingly, Chief Justice John Roberts wrote that the president’s directive was “neutral on its face.”

Of course, the president’s directive is probably not neutral in intent. Trump and many of his senior aides bear an avowed animus toward Muslims or Islam, or both. Trump himself said during the 2016 campaign that he thinks “Islam hates us.” How much should intent matter? Constitutional law scholars—and of course the Supreme Court itself—are divided. In her dissent, Justice Sonia Sotomayor cited Trump’s rather long paper (or tweet) trail to argue that “taking all the relevant evidence together, a reasonable observer would conclude that the Proclamation was driven primarily by anti-Muslim animus.” But the extent to which certain motivations figure more than others is always difficult to divine. It’s also possible that someone’s intent changes over time, and it’s not necessarily the easiest task to discern what Trump’s “primary” versus “secondary” motivations might be on any specific matter.  What we do know is that the discriminatory nature of the text of the order itself is no longer self-evident, so what might have initially been an unequivocally discriminatory “Muslim ban” is now something else.

I am still deeply uncomfortable with the Supreme Court’s ruling. It contributes to the legitimization and mainstreaming of anti-Muslim bigotry. That’s certainly how it will be interpreted by millions of Americans. But that doesn’t mean the ruling itself, in narrow terms, rises to the level of one of the great moral questions of our time. The decision does not turn American Muslims like myself into “second-class citizens,” and to insist that it does will make it impossible for us to claim that we have actually become second-class citizens, if such a thing ever happens. To claim that Jim Crow or the Holocaust were similarly “legal” diminishes the moral seriousness of crimes that nearly all Americans, today, agree were unequivocally wrong. (No such consensus exists on Trump v. Hawaii and to assume that it will exist at some point in the future is to assume that morality will always necessarily be progressive and retroactive.) To use a less incendiary comparison, it is also difficult to argue that Trump v. Hawaii is comparable to the 1944 Korematsu v. U.S. decision permitting the internment of Japanese Americans. Nation-states generally have wide latitude in determining which non-citizens can enter their borders, where Korematsu targeted U.S. citizens.

Voters should be able to debate which entry and immigration policies are most appropriate, effective, and, yes, moral as it relates to non-citizens outside of our borders. To insist that such questions should be decided outside the confines of normal democratic deliberation undermines democratic responsiveness and accountability. This is particularly a risk at a time when immigration, rightly or wrongly, has become a top concern of voters in most Western democracies. To think that such questions can be resolved by dismissing or bypassing the views of your fellow citizens is a “long term recipe for public disillusionment and alienation,” writes Tablet’s Yair Rosenberg. The courts may be great places to bend the arc of history toward justice, but they’re only great places for that when they agree with whatever we already think is just.

As The New York Times notes, those who feel uncomfortable (or disgusted) with recent Supreme Court decisions must “look somewhere else. That place is the ballot box.” Moral judgments on constitutionally and legally muddy debates can be rendered, but they’re best rendered by persuading as many of our fellow citizens that they should stop voting for anti-Muslim presidents.