The Supreme Court yesterday in a 5-4 decision upheld the Trump administration’s travel ban, citing the relevant statute’s extreme deference toward executive branch national security determinations on the entry of persons, as well as the Court’s own historic deference toward executive branch discretion in this area.
The four liberal justices dissented, but did not agree on reasoning. Breyer and Kagan went for a low-key, minimalist fix — keep the injunction in place while ordering additional factfinding about implementation — that might have begun as an effort to craft a narrow decision conservatives would join. Only two Justices, Sotomayor and Ginsburg, went along with the arguments that persuaded the Ninth Circuit judges below.
Both dissents, however, stressed the significance of improper animus / discrimination against religious belief, the same issue championed by the Court’s conservatives in Masterpiece Cakeshop earlier this month.
Legal buffs may be interested in Thomas’s concurrence in which he pronounces universal injunctions “legally and historically dubious.”
Finally, and of interest to all Americans, the Court through its majority opinion officially repudiated Korematsu v. U.S. (1944), the decision in which it once upheld forced wartime internment of Japanese-Americans. Korematsu had never been officially repudiated until today.
The podcast above with Caleb Brown and Ilya Shapiro is at this link. Earlier here and here. Other views: Eugene Volokh, Ilya Somin. More: Roger Pilon.
14 Comments
Non-citizens without the US have the right to come here? That’s the implication of the Sotomayor/Ginsburg dissent.
I was hopeful, which was foolish, that the Court would seize this opportunity to overrule the precedents that established deference to the political branches and finally get rid of the spurious and unjustified presumptions of “regularity” and “good faith” that fly in the face of reality. But alas, instead of saying that Trump receives the same amount of deference as all Presidents should and that amount is zero, they did not. Wasted opportunity.
The implication of your statement, Steve, is that the polity is powerless to restrict entry into the US. That violates all precepts of democracy.
How so? I’m not saying entry can’t be restricted, I’m saying courts should (1) make the political branches explain their decisions, (2) prove those explanations are honest, and (3) prove they put real thought into those decisions. Whether or not the polity can restrict entry has nothing to do with whether or not the courts take the executive branch’s word for it about things or, say, assume the findings in a piece of legislation were based on real consideration of pros and cons rather than a committee chair scripting a hearing with one-sided testimony from a few activists and no acknowledgment of contrary evidence or opinions.
Deferring to the political branches means inviting the political branches to lie. The Supreme Court had a chance to get rid of a line of precedent that says “If the President says he followed the rules, his word is good enough and courts shouldn’t look at evidence”. It didn’t.
“I’m saying courts should (1) make the political branches explain their decisions, (2) prove those explanations are honest, and (3) prove they put real thought into those decisions.”
The courts don’t have the power to do that as a general rule.
The courts can only overturn actions of the political branches where those actions violate some limit that the constitution places on the political branches, and the constitution places no limits at all on immigration restrictions.
MattS, the constitution contains some broadly worded prohibitions on the political branches, with no limits on those prohibitions. Those prohibitions should therefore apply to immigration restrictions along with everything else, but in the name of deference the court has read an “except with regards to immigration” limit onto those prohibitions – creating the apparent “no limits at all on immigration restrictions” you speak of.
Steve,
The only “prohibitions on the political branches” in the constitution that would be even half a broad as you imply are the bill of rights amendments.
Of those, only 1A would come anywhere near being applicable in an immigration restrictions context. And no, even 1A is not so broad as to be applicable to non-citizens outside the territory of the United states.
Just because something is bad policy, and I do think the travel ban is generally bad policy, that doesn’t make it unconstitutional.
This sounds like the courts get to require the political branches to play “Mother, may I?”
Well, the Constitution does set limits on the political branches and I think they’ve proven they can’t be trusted to abide by those limits if they’re not forced to. Passing judgment, weighing evidence, applying rules to situations… that’s what courts do.
Agreed. But…
Judges are not well suited to decide which countries are safe to accept people from. It’s not their area of expertise.
One of the criteria for banning a country is if they don’t share terrorism-related information. Are we seriously going to have a federal district judge look at all the classified information we have that informed the decision, and go point by point for each country and each restriction and say which restrictions are permissible and which are not? Is the judge supposed to simply substitute his judgement for that of the executive branch? If the judge does a worse job, what do we do about it?
Also, if this was a blanket “Muslim ban” or a functional equivalent that would be one thing, but this isn’t. Last I heard, there were 8 countries on the list, including the non-Muslim North Korea and Venezuela, and in total those countries contain less than 10% of the world’s Muslim population. The countries with the largest Muslim populations, like Indonesia, Pakistan, Bangladesh, and Egypt, are not on the list. Iran is the largest Muslim country on the list (it actually has more Muslims than the rest of the countries on the list combined); is anyone *really* going to object to rejecting people from Iran? Can you point to any one country on the list and say there is not a rational basis to exclude their people from our country?
Steve, I certainly think judges, as a class, have demonstrated that “they can’t be trusted to abide by [] limits if they’re not forced to.” The only ones who can “force” judges to abide by limits are superior court judges. And they don’t do a very good job of it.
On the whole, though both sets are UTTERLY flawed, politicians deciding these issues > judges deciding these issues.
“I’m saying courts should (1) make the political branches explain their decisions, (2) prove those explanations are honest, and (3) prove they put real thought into those decisions.”
Sure looks like my “Mother, may I” characterization is apt.
I suppose it is apt, SPO. Maybe its misplaced, but I put more faith in the branch whose members don’t have to pander to idiots to stay in office (and only have to pander to 101 to get in office).
David C not so much go over the classified information bit-by-bit and substitute his own judgment as go over it and provide independent verification that it exists, that it says what the executive branch claims it does, and that it looks authentic. The Executive has too much of a track record of lying about things being necessary for national security for me to think it appropriate for the courts to believe the Presidency – not this President, but any of them – without corroboration.
Steve, no matter whether you trust Judges more than Congresscritters, Senators, or the President, that’s not the way our republic is designed. We don’t have a Judiciariat. The three branches are co-equal. And since the Executive is the branch which enforces the law, the President could tell even the Supreme Court to go pound sand if it tried to make him play “Mother May I?”. (There would be political fallout of course.)
More pertinent in this particular case is that the law Congress passed about the President restricting immigration specifically refers to the President’s judgement. Any court that attempts to replace the President’s judgement with their own is not following the law.