Trump, im­mi­gra­tion and the Supreme Court

The pres­i­dent’s travel ban is res­cued for a closer look

The Washington Times Daily - - OPINION - By An­drew P. Napoli­tano An­drew P. Napoli­tano, a former judge of the Su­pe­rior Court of New Jer­sey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

Ear­lier this week, af­ter nearly uni­form re­jec­tions by judges all across the coun­try, Pres­i­dent Trump achieved a court vic­tory in the per­sis­tent chal­lenges to his most re­cent ex­ec­u­tive or­der re­strict­ing the im­mi­gra­tion of peo­ple into the United States from six pre­dom­i­nately Mus­lim coun­tries. Lower fed­eral courts had con­sis­tently ruled that the pres­i­dent’s be­hav­ior was an­i­mated by an anti-Mus­lim bias — a bias he force­fully ar­tic­u­lated dur­ing the pres­i­den­tial elec­tion cam­paign — con­clud­ing that what ap­peared to be, on its face, a travel ban based ra­tio­nally on na­tional se­cu­rity needs was in re­al­ity a “Mus­lim ban” based on re­li­gious fear, prej­u­dice or ha­tred.

The Supreme Court unan­i­mously saw it dif­fer­ently. Here is the back story.

I have ar­gued for months that both the first travel ban ex­ec­u­tive or­der, signed Jan. 27, and the sec­ond one, signed March 6, were law­ful and con­sti­tu­tional be­cause the courts have ruled that the Con­sti­tu­tion gives the pres­i­dent ex­clu­sively the fi­nal say on for­eign pol­icy and be­cause they have ruled that im­mi­gra­tion is one of the tools he can use to ef­fec­tu­ate that pol­icy. More­over, Congress has ex­pressly au­tho­rized the pres­i­dent to sus­pend im­mi­gra­tion from stated coun­tries for fi­nite pe­ri­ods of time to en­hance na­tional se­cu­rity.

In or­der to do this and pass ju­di­cial muster, the pres­i­dent’s lawyers in the Jus­tice Depart­ment need only show that the pres­i­dent has a ra­tio­nal ba­sis for his or­der. Mr. Trump ar­gued that his ra­tio­nal ba­sis was a de­ter­mi­na­tion by the State Depart­ment un­der former Pres­i­dent Obama, re­in­forced by his own State Depart­ment, that im­mi­grants who would cause harm once here in the U.S. are more likely than not to come from the six des­ig­nated coun­tries in the sec­ond or­der — Iran, Libya, So­ma­lia, Su­dan, Syria and Ye­men.

The tra­di­tional Judeo-Chris­tian view of gov­ern­men­tal de­ci­sions that limit the lib­er­ties or op­por­tu­ni­ties of many be­cause of the an­tic­i­pated be­hav­ior of a few is that those de­ci­sions are un­just and need not be obeyed. In­deed, in Amer­ica — in our post-Civil War and post-civil rights eras — we have come to the po­lit­i­cal and le­gal con­sen­sus that in­di­vid­ual wor­thi­ness is per­sonal and is not a char­ac­ter­is­tic of a group, and we have con­demned other coun­tries’ govern­ments for pun­ish­ing the many be­cause of the fear or be­hav­ior of a few. Yet the is­sue be­fore the high court re­gard­ing the pres­i­dent’s ex­ec­u­tive or­der is not its wis­dom, moral­ity or just­ness.

The is­sue is its law­ful­ness and its con­sti­tu­tion­al­ity.

If an ex­ec­u­tive or­der is based on a de­nial of a fun­da­men­tal lib­erty (other than travel) — speech or re­li­gion, for ex­am­ple

— then the Jus­tice Depart­ment has a much higher bar to meet, called strict scru­tiny. Those of us who mon­i­tor these things have fairly well con­cluded that it can­not meet that high bar. Stated dif­fer­ently, if the high court con­cludes that the travel ban is re­ally a Mus­lim ban, the court will in­val­i­date the ban — which ev­ery court to re­view it be­fore the Supreme Court did.

In the first chal­lenge to the pres­i­dent’s first or­der, a fed­eral district court in Seat­tle ruled that it was based on re­li­gion, and the 9th U.S. Cir­cuit Court of Ap­peals up­held that rul­ing. Rather than ap­peal that to the Supreme Court, the pres­i­dent signed the sec­ond ex­ec­u­tive or­der — which im­posed the same re­stric­tions as the first, but in more thought­ful, cau­tious and lawyer­like lan­guage.

The sec­ond ex­ec­u­tive or­der was chal­lenged in fed­eral district courts in Honolulu and An­napo­lis, both of which ruled that it, too, was based on re­li­gion, and there­fore they in­val­i­dated it. The 4th U.S. Cir­cuit Court of Ap­peals in Rich­mond up­held the An­napo­lis de­ci­sion, and the 9th Cir­cuit in San Fran­cisco up­held the Honolulu de­ci­sion. The Jus­tice Depart­ment ap­pealed both Cir­cuit Court rul­ings to the Supreme Court, and the Supreme Court in­ter­vened.

Bear in mind that there has been no trial in any of these cases. The rul­ings ap­pealed from were all pre­lim­i­nary in na­ture, based not on cross-ex­am­ined ev­i­dence but on the judges’ feel for the cases and their un­der­stand­ing of the law. The same is the case with the Supreme Court rul­ing. It did not say what the law is and what bur­dens the govern­ment must meet for the court to up­hold the sec­ond ex­ec­u­tive or­der. But it did in­val­i­date all in­junc­tions im­posed by the lower courts against the en­force­ment of the sec­ond or­der.

In so do­ing, it carved out ex­cep­tions to the ex­ec­u­tive or­der. These ju­di­cially cre­ated ex­cep­tions pro­vide that im­mi­grants from the six coun­tries are ex­empt from the travel ban if they can show that they have a “re­la­tion­ship” with a per­son or en­tity in the U.S. Though the word “re­la­tion­ship” is am­bigu­ous, it can range from a job of­fer to a univer­sity ad­mis­sions of­fer to a busi­ness op­por­tu­nity to an anx­ious fam­ily mem­ber await­ing the im­mi­grant in the United States.

This judge-made ex­cep­tion to the pres­i­dent’s for­eign pol­icy was prob­a­bly a com­pro­mise crafted by Chief Jus­tice John Roberts in­tended to bring the lib­eral and con­ser­va­tive wings of the court to agree­ment on the lim­ited is­sue of whether the sec­ond ex­ec­u­tive or­der can be in place and en­forced by the govern­ment dur­ing the time that the court needs to ex­am­ine it.

Jus­tices Clarence Thomas, Sa­muel Al­ito and Neil Gor­such dis­sented on the ex­emp­tions. They ar­gued that the court has no busi­ness or right in­ter­fer­ing with the pres­i­dent’s for­eign pol­icy and that the “re­la­tion­ship” stan­dard is so vague that it will spawn thou­sands of lit­i­ga­tions. Nev­er­the­less, the Supreme Court will hear oral ar­gu­ment on the power of the pres­i­dent to use im­mi­gra­tion travel bans as an in­stru­ment of for­eign pol­icy in Oc­to­ber and will prob­a­bly rule be­fore Christ­mas.

And then those who want to chal­lenge the pres­i­dent in court will be able to con­test the law as the Supreme Court will ar­tic­u­late it. And this trou­ble­some busi­ness of ban­ning peo­ple from com­ing here be­cause of their place of ori­gin will be with us for a long time.

Bear in mind that there has been no trial in any of these cases. The rul­ings ap­pealed from were all pre­lim­i­nary in na­ture, based not on cross-ex­am­ined ev­i­dence but on the judges’ feel for the cases and their un­der­stand­ing of the law.

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