Travel Ban

My USA Today Op Ed on the Travel Ban Decision

The op ed outlines some of the grave flaws in today's Supreme Court ruling.

|The Volokh Conspiracy |

USA Today just published my oped on today's Supreme Court decision on the travel ban. Here's an excerpt:

There are none so blind as they who choose not to see. That saying captures the grave error the Supreme Court made in today's travel ban decision. In a 5-4 decision written by Chief Justice John Roberts, the justices largely upheld President Donald Trump's "proclamation" banning nearly all entry into the United States by citizens of five Muslim-majority nations.

They did so even though, during the 2016 campaign, Trump repeatedly called for a "Muslim ban" forbidding Muslims from entering the United States. When he later switched to a"territorial" ban focusing on Muslim-majority nations, he repeatedly equated this new approach with his original policy, and even called it an "expansion" of the earlier Muslim ban….

In any other circumstance, such clear and overwhelming evidence of discriminatory motive, combined with the absence of legitimate justifications, would be a violation of the First Amendment…. The Court has repeatedly ruled that evidence of discriminatory motive targeting people on the basis of race, ethnicity, or religion, can invalidate even a seemingly "neutral" policy that does not explicitly mention the forbidden classification, unless the government can prove it would have adopted the same policy for legitimate reasons….

Chief Justice Roberts' opinion cites Trump's statements, and assumes that they are relevant evidence. But he nonetheless essentially ignores their impact by ruling that legal challenges to presidential decisions on immigration policy are subject only to minimal "rational basis" review that can be satisfied so long as there is a plausible basis for the policy.

This approach comes close to gutting the Bill of Rights as a constraint on presidential power over immigration. Almost any discriminatory exclusion can be justified on the theory that the people barred pose some sort of threat, especially if the courts refuse to consider the quality of the evidence that supposedly justifies such claims…..

Nothing in the Constitution justifies such near-total exclusion of immigration policy from the constraints of the First Amendment….

It is true that immigration and national security policy involve issues on which the executive has greater expertise than the courts. But the same can be said of many other policies covered by the Bill of Rights, including those involving internal violence and terrorism. And even if executive expertise on national security is normally due deference, that should not apply in a case where there is overwhelming evidence that security is not the true purpose of the government's policy.

There are several notable flaws in the majority's decision that I was not able to cover in the op ed, due to space constraints. For example, the majority also emphasizes that the Proclamation is not tainted by animus towards Muslims because includes provisions for discretionary waivers from the travel ban for, among other things, individuals suffering "undue hardship." But, as Justice Stephen Breyer explains in his dissent, the evidence indicates that the administration has uniformly rejected nearly all waivers, including even that of an 8 year old girl suffering from cerebral palsy who urgently needs medical treatment that cannot be provided in her home country (Yemen). That denial was partly reconsidered when her oreal became public, but it still has not actually been reversed. There is no plausible basis for concluding that she and others like her somehow threaten national security. Their exclusion can only be explained by the discriminatory purposes behind the travel ban.

In an article in The Hill, and (much more fully) in an amicus brief I coauthored with Prof. Michael Mannheimer, I addressed claims, some of which are echoed in today's opinion, that a decision upholding the travel ban was required by Supreme Court precedent.

I also have not so far had much chance to cover the dissenting opinions by Justices Breyer and Sotomayor. But it is worth noting that they show that four members of the Court are willing to support serious judicial scrutiny of immigration policies that may violate the Bill of Rights. A close 5-4 decision that licenses blatant discrimination, draws strong dissents, and is certain to attract widespread criticism from experts outside the Court is exactly the sort of ruling that is unusually likely to be reversed or limited in the future. Today's opinion states that Korematsu v. United States—the notorious 1944 Japanese internment case—"was gravely wrong the day it was decided, [and] has been overruled in the court of history." Hopefully, a future Supreme Court decision will someday say the same thing about Trump v. Hawaii.

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  1. I could have saved you some paper Bull Cow.

    Here’s the sum of what you wrote:

    Bull Cow: “REEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE!”

    “WAAAAAAAAAAAAAAAAAAHHHHHHHHHHHHHHHHHHHHHHHHHHHHH”

    “Trump is bad.”

    “Open Borders.”

    1. I have to keep posting this section of US code in every Ilya Somin thread because he keeps ignoring it. And sure enough, it is what determined the Supreme Court’s decision.

      Travel Ban:

      8 U.S. Code ? 1182 (f) Suspension of entry or imposition of restrictions by President

      Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

      http://www.law.cornell.edu/uscode/text/8/1182

      1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

        1. It’s a good thing they didn’t, idjit.

  2. Ilya’s TDS has unfortunately deeply affected his ability to think clearly.

    Is he really calling for judicial review, discovery and approval for national security orders? It sure seems so.

    Would he have supported Hillary having the same level of intrusion for any orders that could have possibly affected Trump supporters had she won? Of course not.

    1. Are you really saying all the President has to do is yell, “National Security!” and he can do whatever he wants?

      1. WE are saying that when it comes to excluding foreigners from the US, yes, ALL the President has to do is say “National Security”, and the Courts have to STFU.

        The admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell,

        Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly bur- dens the constitutional rights of a U. S. citizen. That review is limited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel

        Let’s repeat the key part here: foreign nationals seeking admission have no constitutional right to entry

        The only way the Court could have gone the other way is to completely rewrite US immigration law and 200+ years of precedents

        I realize a lot of you lefties think that’s a perfectly wonderful thing to do, but it’s not. it’s entirely and completely illegitimate.

        There’s not “but Trump” clause in the Us Constitution.

        1. Let’s repeat the key part here: foreign nationals seeking admission have no constitutional right to entry

          THIS.

          1. No one is saying that they do.

            There are lots of things people don’t have a constitutional right to have the government do. But if the government chooses to do them, the government has to do them in a way that does not violate the Bill of Rights, the 14th amendment, etc.

            1. “No one is saying that they do, but let me say that they do.”

              1. Vinni – things the government can’t do isn’t the same thing as things people must be able to do.

                Thus, ‘no one has a right to seek admission to the US’ is not the same as ‘the US government cannot forbid an entire religion from entering the US.’

                Negative versus positive rights used to be a pedantic thing conservatives corrected me about all the time. But things sure have been changing in conservative academia this past decade.

            2. By definition, the Bill of Rights and 14th Amendment DOES NOT APPLY to foreigners seeking entry. It applies to citizens here, so if a person’s spouse was denied entry and a spousal green card based on impermissible reasons, that could be justiciable, but otherwise, it’s not.

      2. If you think that is the only argument made in defense of the travel restrictions by the White House Lawyers, you have a very limited set of vocabulary or are incapable of reading. Which is it?

  3. Trump called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”, in order to prevent terrorists from entering the country.

    But the Administration figured out that it couldn’t do that, so it either:

    1. Devised a pretext to prevent Muslims from entering the country, without explicitly banning Muslims

    or

    2. Created a non-discriminatory method of identifying people who might be terrorists.

    I’m not sure how we can infer that it did 1 and not 2.

    1. Easy on #2. It is extremely discriminatory, and definitely overbroad. But guess what — pretty much every immigration restriction one can devise is both discriminatory and overbroad and would never pass muster if applied domestically. That is why it doesn’t make sense to try to apply standard First Amendment or Equal Protection jurisprudence to immigration questions.

      1. Exactly. Somin is trying to apply a standard that has never been and never could be applied in this situation. If it ever was, it would effectively end the ability of the government to control the border in all but the most extreme situations. That is the end that Somin seeks and instead of advocating for that policy, pretends it is required by the Constitution even though it clearly is not.

      2. The dissent would rule the INA unConstitutional in light of the rhetoric that surrounded its passage.

        1. And that is something that, if he were being honest, Somin would agree with.

    2. If it did 1, then it did a pretty piss poor job, since the countries blocked contain less than 10% of the world’s Muslims

    3. This is just the dishonesty of Ilya. Trump made that comment early in his campaign. Look at the last 2 or 3 months of his speeches to crowds and you will see the message tempered to restricting access to countries that have high terrorism rates. It became a much more tempered message. But Somin and others tend to ignore that because…. reasons.

      1. Jesse, you are ignoring Trump tweets from last summer. And comments from Trump folks on this blog up through today.

        Do you deny that a Muslim ban is what Trump and his base wants?

        1. And now we have crystallized the issue.
          Who cares what Trump, or, anyone else, for that matter, WANTS?
          What the Court can review is what the law is and what the executive did.
          Yet another manifestation of the mistaken notion that the Constitution contains a “…but Trump…” clause.

          1. I mean, I’m not going to relitigate a case the Supreme Court just ruled the other way on, but I do still think that there is some level of pretext that the judiciary will be unable to look beyond.

            Courts don’t like playing telepath, but they don’t like being fooled either.

            And I continue to believe that it’s not ‘But Trump.’ I would have expected this same litigation if it were Bush or whomever.
            It’s very much becoming the new right-wing shield against all counter-arguments, but Trump isn’t resisted or whatever for who he is; he’s resisted based on what he does, how he does it, and why he says he’s doing it.

        2. Of course Trump wants a Muslim ban. He wants a Muslim ban because he thinks they are likely to be terrorists. It is a bigoted view. So sure, the watered down ban is either a pretext to keep out Muslims, or a non-religious way of identifying who is likely to be a terrorist. How do you differentiate one from the other?

        3. And comments from Trump folks on this blog up through today.

          I get it. SCOTUS can rule that an executive is bigoted because of some random internet jackass now

    4. Since we know they didn’t do 1, why did you ask this?

  4. Prof S — can you point to any Supreme Court cases that apply the First Amendment to Sec 1182(f) decisions, based on the effect on the aliens?

    As I mentioned in one of the other threads, it seems non-controversial that the President can make 1182(f) classifications based on political affiliation, for example. It also seems clear that such classifications would, if made with respect to US residents, almost certainly fall afoul of the First Amendment and the Equal Protection Clause.

    So why should religion be different?

    1. Ilya doesn’t actually respond or engage with commenters in any way; he just shit-posts and runs. Don’t waste your time trying to interface thoughtfully with him.

      1. He doesn’t even respond to emails that ask questions of his reasoning. Yes you can find his email at the original VC site.

        1. And I should mention most of the other regular posters do respond. I’ve had some good back and forths with Professors Kerr and Volokh.

          1. Personal engagement via e-mail isn’t something you’re entitled to from bloggers.

  5. This approach comes close to gutting the Bill of Rights as a constraint on presidential power over immigration. Almost any discriminatory exclusion can be justified on the theory that the people barred pose some sort of threat, especially if the courts refuse to consider the quality of the evidence that supposedly justifies such claims…..

    When has the Bill of Rights ever been found to apply to Presidential Powers to deal with foreign nationals on issues of national security? The bottom line here is that Somin wants to read full due process and BOR protections for foreign nationals trying to enter the country. And that is frankly insane.

    1. And the SCOTUS wasn’t “blind”. They addressed his arguments and found them wanting.

      Were Obama’s regulations on, say, coal ALL illegal? Courts didn’t think so but his campaign speeches indicated animus.

      1. Or guns.

  6. Ilya, you’ve long since demonstrated you have nothing of value to add to the travel ban debate. You have left your indelible mark on the internet for all future generations to see that you were opposed to President Trump. Please don’t spam the VC with eight different posts devoid of substance just to make sure it gets extra-noted.

    1. Bull Cow needs a padded stall.

      1. A question for Bigoted Right-Wing Mini-Me:

        Do Trump and conservatism generate bigots and stale-thinking rubes, or merely attract them?

        Thank you.

        1. A question for Bigoted Left-Wing Regular-You:

          Do Hillary and liberalism generate bigots and non-thinking rubes, or merely attract them?

          Thank you.

  7. Give it up, Ilya. You were wrong, and you lost. Yet you keep beating that dead horse.

    1. That’s what the bigots who cheered for Korematsu — your ideological ancestors — said.

      Prof. Somin will win over time. Our vivid record with the ignorant and intolerant demonstrates that it is just a matter of time.

      1. Korematsu was due to Franklin Roosevelt, your own ideological ancestor.

  8. “This approach comes close to gutting the Bill of Rights as a constraint on presidential power over immigration. ”

    This is a laughable comment, because you can’t “gut” something that has never been there.

    Foreigners outside the US do not have any Bill of Rights protections, and should not have any Bill of Rights protections.

    What the majority refused to do was rewrite the Constitution, immigration law, and several hundred years of precedent. Doing it would have made you happy, but it would have been utterly wrong.

    There’s this concept you might have heard of, it’s called democracy. You don’t like current immigration laws? Convince the American people they should be changed.

    But that would require making rational arguments. Given the dog’s breakfast you offered up here, I see why you don’t want to go down that road

    1. Foreigners outside the US do not have any Bill of Rights protections, and should not have any Bill of Rights protections.

      What do you mean? These are just pre-citizens. We should be allowing them to vote where ever they are, too.

      1. You forgot your /sarc close

    2. It’s amazing the one side argues “He has animus as the real reason behind his decision! See???” while everyone on both sides are supposed to look the other way to the animus against Trump, motivating fishing for arguments, any will do, and honking the horns for then, to get in the way.

      Now that’s perfectly legitimate and part of politics, of course, but we shouldn’t pretend grand constitutional principles are the motivating factor.

      1. ===we shouldn’t pretend grand constitutional principles are the motivating factor.===

        …which is why it seems like such an oddity on this site.

      2. it’s almost like Executive policies are not the same as some yahoo making bad arguments on the Internet.

        Your argument that this wasn’t a legitimate constitutional question implies that the four liberal justices are ruling in bad faith, which may be a bit of a heavier lift than you intend.

  9. The blind person here is the one who refuses to see that, after talking about banning Muslims during the campaign, on being elected President Trump did something else, instead.

  10. Have there been any court challenges to the tariffs yet? Although there are no religious discrimination issues involved, it seems like Trump’s national security rationales for the tariffs are even more specious than for the travel ban. At least Trump’s Muslim ban comments are separated in time from the executive orders. Even now, Trump repeatedly expresses that he is levying the tariffs as a negotiating tactic to get other countries to lower their tariffs and non-tariff barriers, completely undermining any national security rationales. When a President exercises a power that is not granted to him under law, for example levying a tariff when he has no national security rationale to do so, who has standing to challenge that? Companies and/or consumers that have to pay the tariff?

    1. I’m sure various people are preparing WTO Dispute Settlement cases. But that would be easier if the US hadn’t refused to appoint judges to the Dispute Settlement Board since Trump came to power, leaving them severely understaffed.

    2. and here we go

      In the most significant legal challenge so far to Mr Trump’s trade policies, the American Institute for International Steel said it had lodged an action in the US Court of International Trade to have the 1962 statute that Mr Trump used to impose steel tariffs ruled unconstitutional.

  11. I am pro-immigration. I think we should have a path to citizenship for people who have been here a long time, even illegally, as long as they have not committed any crimes beyond illegal entry. I think Trump is an awful person to be President, and I disagree with him on a broad range of policies. I think the travel ban served no serious policy or security purpose.

    Yet, I see no justification for saying the Court was wrong. Far from it: I think it is the only reasonable opinion. Anything less is completely ignoring the rule of law. The law on this is very clear. The Constitution grants clear powers, the statutes recognize clear authority.

    The bottom line is that the dissenters, and Somin, wants us to believe that Trump, because he said some prejudicial things during the campaign, should be constitutionally prohibited from enacting the exact same policies as other Presidents might. That is obviously absurd.

    1. The Constitution grants clear powers, with clear limitations. One of those limitations is that none of the powers granted by the Constitution to Congress (and then delegated to the President) may be used to establish a religion.

      1. Well, it’s a good thing neither Congress, nor the President, have established a religion.

    2. I think it is the only reasonable opinion. Anything less is completely ignoring the rule of law.

      Yeah, and anyone who disagrees with you hates the Constitution and thus America. ?.?

      1. Yeah, and anyone who disagrees with Ilya/Martined/and others .. has established a religion. That doesn’t play any better, in fact it is far worse.

        At least when someone says “that guy hates America” they are not pretending to make a legal argument.

        If ilya had been claiming for months on end only that Trump hates America, I could perhaps agree that Trump hates Ilya’s conception of America. But the establishment clause angle was BS from the start.

    3. “I am pro-immigration. I think we should have a path to citizenship for people who have been here a long time, even illegally,

      I used to think this, but now think that any credibility to our system depends on facing down the self-inflicted humanitarian complaints and deporting people who created this crisis: the illegal immigrants and visa over stayers themselves. If we don’t, we will continually be back in the same position of indulging more lawlessness every few election cycles.

  12. ” the evidence indicates that the administration has uniformly rejected nearly all waivers”

    Come on, Ilya, that’s not even close to true.

    1. Prof. Somin cites Breyer for that.

      I am honestly interested in if there is a source to contradict the dissent.

  13. Is Islam a religion or a political ideology?

    How can you be sure?

    1. It can be two things. Or more.

  14. I understand the difficulty of this case for Professor Somin. Of all the Conspirators, Professor Somin is the most internationalist at heart, most inclined not to take nations and their borders and wars too seriously. He has longe championed open borders and the free movement of people as a basic human right. And he has long favored minimizing distinctions between citizens and foreigners.

    From this perspective, a decision that characterizes a right to exclude in terms of a nation’s sovereign dignity, seeing sovereignty as including a right to make unfettered choices akin to the autonomy of a person, must seem horrifying. It’s 180 degree opposite of what he stands for.

    And yet, the Court has had a nationalist streak in its precedents that has indeed described national sovereignty in somewhat like the terms it has used to characterize personal autonomy. It has also described government decisions about foreigners in somewhat like the way it has described individual decision-making in the abortion context, connecting dignity with unfettered freedom in both.

    As this is totally inimical to what Professor Somin would like the law to be, it is understandable that Professor Somin would not merely see it as incorrect or illegitimate reasoning. He sees it as utter lawlessness, as no reasoning at all.

    But the streak is there. If one wants to predict the direction of the law, as distinct from leading it down ones own path, it might be best not to be blind to it.

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