A lim­ited vic­tory for Trump

The Supreme Court sup­ports the pres­i­dent’s na­tional-se­cu­rity re­spon­si­bil­ity

The Washington Times Daily - - EDITORIAL -

The U.S. Supreme Court didn’t quite hit a home run Mon­day, but the jus­tices hit a sharp dou­ble and a cou­ple of sin­gles that showed that there’s life yet in the lineup. The pres­i­dent got a lit­tle help to pro­tect the na­tion from ter­ror­ists, school­yard safety was held to be as im­por­tant for chil­dren in pri­vate schools as in pub­lic schools, and the court hinted that help might be on the way for a Colorado wed­ding-cake baker who doesn’t want to join the cel­e­bra­tion of same-sex wed­dings.

The court’s unan­i­mous de­ci­sion up­hold­ing cru­cial parts of Pres­i­dent Trump’s tem­po­rary ban on ad­mit­ting vis­i­tors from six na­tions with a his­tory of ex­port­ing ter­ror­ism, in­vites fur­ther lit­i­ga­tion, and it re­buked the judges of two lower ap­peals courts.

A con­cur­ring opin­ion by three jus­tices, in­clud­ing the most re­cent ad­di­tion to the court, Neil Gor­such, was an im­plied re­buke to the other six jus­tices of the high court for chip­ping away at the pres­i­dent’s re­spon­si­bil­ity for keep­ing the na­tion safe.

The court faulted the 4th U.S. Cir­cuit Court of Ap­peals in Rich­mond for block­ing the travel ban, and its de­ter­mi­na­tion that the ban was “rooted in re­li­gious an­i­mus to­ward Mus­lims, as re­vealed in Pres­i­dent Trump’s tweets and sharp re­marks. The de­ci­sion fur­ther re­buked the 9th U.S. Cir­cuit Court in San Fran­cisco, which had put a sim­i­lar hold on the ex­ec­u­tive order.

The pres­i­dent’s re­ac­tion Mon­day, that the Supreme Court’s de­ci­sion was “a clear vic­tory for our na­tional se­cu­rity,” may be pre­ma­ture. Rel­a­tively few mi­grants will be af­fected by the parts of the pres­i­dent’s order that were left to stand. The high court post­poned for the Oc­to­ber term a de­ci­sion on the ma­jor point of whether the pres­i­dent, and not the courts, are ul­ti­mately re­spon­si­ble for keep­ing the na­tion safe.

Jus­tice Clarence Thomas, joined by Jus­tice Sa­muel Al­ito as well as Mr. Gor­such, wrote that the gov­ern­ment had shown that it is likely to win on the mer­its of its ar­gu­ment, and that in­ter­fer­ence with the pres­i­dent’s re­spon­si­bil­ity is likely to in­flict “ir­repara­ble harm.” Jus­tice Thomas made the com­mon­sen­si­cal point, which only yes­ter­day would never have needed say­ing, that the pres­i­dent’s pre­serv­ing of na­tional se­cu­rity out­weighs any hard­ship for those de­nied en­try into the United States. Amer­i­cans have rights, too.

The de­ci­sion sup­ports the 90-day ban on im­mi­gra­tion from the six sus­pi­cious na­tions — Iran, Libya, So­ma­lia, Su­dan, Syria and Ye­men, first iden­ti­fied as high-risk by the Obama ad­min­is­tra­tion — and the pres­i­dent’s con­tention that fur­ther time is needed for fur­ther screen­ing of visa ap­pli­cants. The ar­gu­ment that this dis­crim­i­nates against Mus­lims is spe­cious; the pres­i­dent’s order did not men­tion re­li­gious faith and the order would ap­ply as well to Jews, Chris­tians, Whirling Dervishes, athe­ists and oth­ers.

The day’s work at the Supreme Court prom­ises an in­ter­est­ing fall term, putting off un­til then a fi­nal de­ci­sion on the pres­i­dent’s order and by tak­ing an ap­peal from a Colorado baker that a lower court said vi­o­lated the rights of two men who wanted him to bake a cake for their same-sex wed­ding. The baker ar­gued that his own rights were vi­o­lated by be­ing re­quired to write on the cake his sup­port for the mar­riage, which he op­posed on re­li­gious grounds.

The baker, Jack Phillips, said he would “be happy to cre­ate other items for gay and les­bian clients,” but his faith re­quires him “to use his artis­tic tal­ents to pro­mote only mes­sages that align with his re­li­gious be­liefs.”

In an­other case with church-state im­pli­ca­tions, the court said a lower-court ex­clu­sion of a re­li­gious school in Mis­souri from a pro­gram of state grants to use re­cy­cled tires to resur­face a play­ground, “can­not stand.” That vote was 7 to 2, with Jus­tices So­nia So­tomayor and Ruth Bader Gins­burg dis­sent­ing.

Mrs. So­tomayor sum­ma­rized her dis­sent from the bench, ar­gu­ing that the de­ci­sion “pro­foundly changes the re­la­tion­ship [be­tween church and state] by hold­ing, for the first time, that the Con­sti­tu­tion re­quires the gov­ern­ment to pro­vide pub­lic funds di­rectly to a church.”

Prevent­ing a child’s skinned knees on a play­ground is a good thing, al­most all could agree, but Jus­tice So­tomayor’s point is well taken. What sim­i­lar ex­clu­sions will now fol­low? To ask the ques­tion is not skep­ti­cism of the good that a re­li­gious in­sti­tu­tion might do, but fear of abridg­ing the First Amend­ment guar­an­tee to keep­ing church and state sep­a­rate. The court will deal with this is­sue again — and no doubt again.

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