Freedom of Religion

The "Travel Ban" Decision, in One (Non-Snarky) Sentence

The U.S. has nearly unlimited power to decide when foreigners are admitted to the country, even based on factors (such as ideology, religion, and likely race and sex) that would be unconstitutional as to people already in the country.

|The Volokh Conspiracy |

There's a lot to be said about this morning's Trump v. Hawaii decision, and I will say little of it. But I do want to summarize what I think is the core legal principle behind the majority's constitutional position: The federal government may pick and choose which foreigners to let into the country (at least setting aside foreigners who have are already been granted residence), even based on factors—political beliefs, religion, and likely race and sex—that would normally be unconstitutional.

This used to be called the "plenary power" doctrine, referring to the principle that the government has essentially unlimited power when it comes to at least this aspect of immigration law, unlimited even by the Bill of Rights. It is not based on the constitutional text; textually, the First Amendment would apply to all exercise of Congressional authority, whether under the Commerce Clause or the District of Columbia Clause or the Necessary and Proper Clause under Congress's power over immigration. But, right or wrong, it is based on longstanding American legal history; and the majority adheres to that history.

Historically, this has even be used to authorize Congress to discriminate based on race (query whether the Court would today condemn this as "irrational"; more on that below). It has long been seen as authorizing Congress to discriminate based on country of citizenship, without investigation into whether such discrimination might actually be motivated by ethnic hostility. And, most relevant to today's decision, it was seen in Kleindienst v. Mandel (1972) as authorizing discrimination based on political ideology, which would otherwise be forbidden by the First Amendment. (Other past Supreme Court precedents are also consistent with Kleindienst, and some even go further in some respects, but for the sake of simplicity I will focus on Kleindienst here.)

Ernest Mandel was a Belgian "revolutionary Marxist" professor who was invited to speak at various U.S. universities. The government denied him a visa, and he and his inviters sued, claiming this violated the First Amendment.

The Court acknowledged that the First Amendment extends to American listeners and not just to American speakers: Even if one concludes that foreigners outside the U.S. don't have First Amendment rights, and that the government wouldn't affect Mandel's First Amendment rights by excluding him, the exclusion did affect the inviters' First Amendment rights.

Yet the Court rejected the First Amendment claim:

Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case (1889), and in Fong Yue Ting v. United States (1893), held broadly, as the Government describes it, that the power to exclude aliens is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government …." Since that time, the Court's general reaffirmations of this principle have been legion. The Court without exception has sustained Congress' "plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden." Boutilier v. Immigration and Naturalization Service (1967). "[O]ver no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan (1909)….

Mr. Justice Frankfurter ably articulated this history in Galvan v. Press (1954), a deportation case, and we can do no better. After suggesting that "much could be said for the view" that due process places some limitations on congressional power in this area "were we writing on a clean slate," he continued:

"But the slate is not clean. As to the extent of the power of Congress under review, there is not merely 'a page of history'… but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process…. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government…."

As a result, the Court held that, if decisions to exclude aliens could ever be set aside, this would be so only if there was no "facially legitimate and bona fide" reason to exclude the alien. In Mandel's case, the dissent noted, those reasons—labeled by the government as Mandel's "flagrant abuses" during his past visits to the U.S.—"appear merely to have been his speaking at more universities than his visa application indicated." The dissent argued that "It would be difficult to invent a more trivial reason for denying the academic community the chance to exchange views with an internationally respected scholar." But the Court didn't investigate whether the government's true motive might have been the Administration's disapproval of Mandel's political ideas, rather than the supposed violation of past visa conditions; the requirement of a "bona fide" reason did not appear to require an investigation into the government's true motivations, but rather simply focused on whether the "facial[]" reasons seemed sufficient:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [the provision involved in Mandel], Congress has delegated conditional exercise of this power to the Executive.

We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

The majority's decision in Trump v. Hawaii basically applied this logic to another clause of the First Amendment—here, the Establishment Clause (which normally bars discrimination based on religious denomination, including the use of neutral rules in a discriminatorily motivated way) rather than the Free Speech Clause. The majority could have, of course, changed course and largely rejected the plenary power doctrine, or cut back on it in various ways. It could have concluded that the "bona fide reason" language shouldn't be limited to what the reason "facially" given, and that sometimes the courts should "look behind the exercise of that discretion." It could have argued that the Establishment Clause is different in various ways. Here, for instance, are some distinctions that the dissent offers:

Mandel … involved a constitutional challenge to an Executive Branch decision to exclude a single foreign national under a specific statutory ground of inadmissibility. Here, by contrast, President Trump … promulgated an executive order affecting millions of individuals on a categorical basis. Second, Mandel … did not purport to establish the framework for adjudicating cases (like this one) involving claims that the Executive Branch violated the Establishment Clause by acting pursuant to an unconstitutional purpose. Applying Mandel's narrow standard of review to such a claim would run contrary to this Court's repeated admonition that "[f]acial neutrality is not determinative" in the Establishment Clause context. Finally, even assuming that Mandel … appl[ies] here, [it] would not preclude us from looking behind the face of the Proclamation because plaintiffs have made "an affirmative showing of bad faith" by the President who, among other things, instructed his subordinates to find a "lega[l]" way to enact a Muslim ban.

But the Court declined these invitations, and basically reaffirmed the plenary power doctrine, at least when it comes to admission of aliens: All that was needed was a facially plausible reason for the governmental decision, and one was provided here (whether or not it's the true reason, or a reason to which the policy is narrowly tailored).

Congress—and the President, to the extent Congress delegates some such power to the President (as historically it often has)—gets to decide who comes into the country, with no substantial scrutiny under the Bill of Rights by the courts. One can of course agree or disagree with this, but that's the heart of the majority's position.

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  1. Bull Cow must be on suicide watch. Month after month of snarky, snide arrogant posts, boldly declaring how President Trump was going to lose at the Supreme Court, and now, he’s wallowing in his tears of unfathomable sadness.

    Hey Bull Cow, please post! I want to drink those liberal tears!

    1. What kind of performative asshaterry makes someone just cut and paste their contentless tribalism from another thread?

      1. Wait, Artie, who posts nearly the exact same thing every time he posts anywhere, gets a pass, but parody Artie copypastas 1 time (maybe the joke is over your head?) and you’re all over him like flies on shit? Oh right, partisan blinders, I almost forgot.

        1. S is as tribal as most but adopts the “more in sorrow” vibe as cover.

          He never repudiates Kirkland. No enemies to the left and all.

          1. Enemies can be tolerated, whether from the left or the right, as long as they are not Trolls. But regardless, Eugene’s basic point is that “all that was needed was a facially plausible reason for the governmental decision,” and this is a policy he himself appears to have applied to pressing First Amendment issues. After all, any American state has nearly unlimited power to decide which inappropriately deadpan “parodies” will be considered harmful to reputations and which won’t, even based on factors (such as personal connections of the victims) that would be considered unconstitutional in libel cases in most states. Eugene seems to have lent his full support to this state of affairs, because, according to him, the First Amendment only applies in cases of “clear” parody, which presumably means parody that is overtly declared or at the very least “recognized” as such. See the documentation of our nation’s leading criminal “satire” case at:

            https://raphaelgolbtrial.wordpress.com/

        2. I fully admit I give liberals a pass most of the time. I’m a partisan too – no fun to bash my own side. Though I’m not sure I’ve seen him be guilty of that particular sin.

          Luckily, ALK seems to have garnered a following that does that job quite enthusiastically.

          I liked when you accused him of sockpuppeting AltRightGuy.

          1. Seriously? You can just keep on clingin’ then.

          2. I liked when you accused him of sockpuppeting AltRightGuy.

            Well, as much as he whines about the supposed censoring of his other poor troll account, Artie Ray Jim Bob Kirkland, it makes sense that he would have another obnoxious troll account (maybe with the express intent of having it, too, censored). I’m not sure I would call it sockpuppeting though, maybe anti-sockpuppeting?

            1. Concur with your proposed terminology change.

              But the argument of ‘it’s the sort of thing he would do, eh?’ is both weak and very open to wishful thinking.

              IMO, AWRP is just your Maxine Waters writ small.

            2. I don’t whine.

              I revel in mentioning that Prof. Volokh is a censor, the kind who tut-tuts at liberals and libertarians for falling short of his ostensible standards on free expression while hoping no one notices his viewpoint-based discrimination, which seems to be triggered solely when someone pokes fun at Republicans.

              1. I revel in mentioning that Prof. Volokh is a censor,

                A self-refuting argument.

          3. Let the bigots have their fun today, Sarcastro.

            They get fewer and fewer chances as America improves.

            1. Well, America has improved a lot in the last year+, as we’ve upgraded from Obama to Trump.

              Paris agreement trashed, Iran Deal dead, ObamaCare dying, catch and release toast, economy improving, unemployment lower

              Yep, America is definitely improving now that Democrats have so little say in things

              1. “catch and release toast” ???

                Is that a new sport? A metaphor that I’m not catching? Or just a really interesting typo that I can’t figure out?

      2. @sacastr0
        It comes with the Kirkland name and the Kirkland tradition.

        1. Oof, Well played there.

          Like all good shivs, I didn’t even see that one coming.

      3. “What kind of performative asshaterry makes someone just cut and paste their contentless tribalism from another thread?”

        A parody of Arthur Kirkland, of course.

        1. Sadly, apart from the name, this guy seems all too sincere all the time.

          1. Kinda like the real RAK?

  2. Has the court ever applied any restrictions on the power to allow aliens into the country?

    1. Power to allow or power to restrict?

      1. either…

        1. The power to allow aliens? No. That’s always been a creature of statutory law. If Congress wants to allow people in, they can allow people in. There’s nothing in the Constitution to suggest otherwise. To my knowledge, no one has ever even challenged this because there’s no support for the argument.

          Power to restrict? Once again, I’ll say no. It’s a little more ambiguous because there are other doctrines, such as consular non-reviewability that technically mean courts can’t decide whether Congress acted improperly as opposed to ruling that Congress can restrict people entering.

    2. I don’t believe so, nor should it.

      I personally don’t think the Constitution should apply to foreign nationals at all. Obviously we should choose to be nice-ish when dealing with foreigners that are in our custody for whatever reason, but there is zero reason we should be granting them rights in our country they don’t even enjoy in their own. Like it or not the fact is we could engineer an immigration policy that would drastically cut down on problems brought by immigrants. Other than stuff like only letting in highly educated people who will be economically super productive, not criminals etc, the fact is that banning entire classes of people WOULD stop some problems.

      Banning ALL Muslims 50 years ago, as a for instance, would mean we would have had zero acts of Muslim terrorism in the USA. We’d also lose out on a lot of decent Muslim immigrants, but we wouldn’t have had September 11th either… So what’s preferable? We could have given those same allocations we gave to Muslim immigrants to Hindus who DON’T go around murdering people, so perhaps we would have had just as many quality immigrants overall too…

      1. I believe foreigners who are legally in our country should be protected by the Constitution.

        However, as a long time libertarian and supporter of Reason, until we eliminate federal government welfare, I don’t want people immigrating who do so to live off taxpayers. I also don’t want people immigrating who’d lie regarding their “Nationalization Oath of Allegiance to the US” that they will defend and support the Constitution, such as Muslims who want Sharia law which would require changing the constitution, or others who want to make the US socialist.

        As the Declaration of Independence states, governments are instituted among men to protect our Lives, Liberty and the pursuit of Happiness. Not allowing terrorists to come here protects us, as does not allowing people to come here who’d vote away our rights.

        1. The question is how to deal with the people who are citizens that are voting our rights away.

      2. re: “I personally don’t think the Constitution should apply to foreign nationals at all.”

        There is a chicken-and-the-egg problem inherent in that position. It takes a legal determination to confirm that person A is a foreign national. Until that legal determination is made, their citizenship status is unconfirmed. They may well be a US citizen. Because of that unknowable status, all persons including foreign nationals must be accorded protections as citizens at least until after they have been confirmed by a court to be non-citizens.

    3. See how that works? It’s not NICE exactly, but it’s also factually correct. The Islamic world is a fucking mess right now. It hasn’t always been that way, and maybe in 50 years it won’t be again, but for now it is. So why exactly SHOULD we let in people from sketch places? Other than some fuzzy wuzzy feel good argument, or an absolutist freedom of movement argument, there really isn’t a good reason we should.

  3. There’s not really any reason (Besides hostility to Trump.) to think the facially plausible reason was in any way pretextual, either. The actual list of nations was extensively justified, and would be peculiar indeed were it motivated by animus rather than the expressed reasons.

    1. There’s not really any reason (Besides hostility to Trump.) to think the facially plausible reason was in any way pretextual, either.

      Horseshit there’s not.

    2. “The Executive Branch is presumptively dishonest, and its stated reasons for anything are always to be assumed pretextual until proven otherwise.” That’s the reason I wanted the Court to announce.

      1. The Left wouldn’t do that because it would undermine all gun control legislation (amongst other things) and I’m sure the right wouldn’t like it either for plenty of other pet issues.

        1. So they’re all refusing to do their job properly.

          Or maybe not, there is that “coequal” branch flaw in the Constitution. The Executive should be subordinate to the other two.

          1. Why?

            Don’t see how unaccountable lawyers are a better option than somebody the people do have to vote for.

            1. The only qualification for winning an election is convincing more dipshots to vote for you than the other guy convinced to vote for him. So I would absolutely put the person who has an incentive to lie and misbehave, as a way of securing reelection, and whose duty to “execute the laws” amounts to “be the legislature’s gofer” subordinate to judges, considering the job of judges is to weigh evidwnce and sort truth from lies.

              1. If judges are so good at doing their jobs, and our processs for selecting them is robust against corrupting effects, why don’t we populate the other branches the same way?

              2. Shorter Mustelid: I would have been perfectly happy with an unaccountable monarchy to keep those Deplorable peasants in their place.

                1. People, therefore voters, are emotional idiots. Damn straight I’d prefer dispassionate intelligent dictatorship to this democracy crap.

                  1. re: “Damn straight I’d prefer dispassionate intelligent dictatorship”

                    Put your money where your mouth is. Emigrate to Cuba.

      2. “The Executive Branch demoncrap party is presumptively dishonest, and its stated reasons for anything are always to be assumed pretextual until proven otherwise.”
        There, FIFY.

    3. The Cato Institute (hardly a bastion of liberal groupthink) had a reasonable rundown on how the Trump administration’s “neutral” criteria for banning didn’t really make sense – there were a number of countries that met the government’s criteria and still had their residents banned, and a number of other countries that didn’t meet their criteria but were given a pass:

      https://www.cato.org/blog/travel-ban-based
      -executive-whim-not-objective-criteria

      All of that makes it rather easy to come away with the impression that the stated criteria for banning people was written ex post facto to justify the bannings, rather than starting from a level playing field and deciding which criteria to apply.

      1. Well, the truth is if he was truly being objective while trying to stop crazies from coming in, he would in fact have had to ban people from A LOT MORE Muslim countries than he did. Saudi Arabia for starters! But they’re kinda sorta our allies, so it would be bad politics. Hence he only threw in a few of the shittiest countries, mostly just taken from the list Obama came up with himself!

        So he went soft on what he should have done… And you’re complaining?

      2. Cato is as open-borders as they come.
        Not persuasive.

        1. Open-borders libertarians are confused by trying to extend their principles universally. Those principles apply only within a nation-state. People generally are not libertarian. That is why a country has to enforce its borders, which is constitutionally authorized by the Law of Nations clause, inasmuch as entry without consent is an offense against the law of nations.

  4. The argument came down to dishonesty, per the liberal blocks ignorant dissents, versus fscts. Just like somin, not one of the dissents noted that Iraq was taken off the ban list after improving their vetting of citizens with the US. Iraq didn’t become less Muslim in 3 years. The motivating factor that removed them from the list is exactly want the trump adminstration said it was. Idiots on the left can’t argue these facts so they ignore them.

    1. “Iraq was taken off the ban list ”

      As were two other majority Muslim countries.

    2. Come now – this was not a question of fact it was a question of law.

      There was explicitly no inquiry into the facts you assume.

      1. My you’re a dishonest little sot. It was never a question of law, it was a question of animus. The challengers all but admitted during appeals that the order would have been legal if not for the statements Trump made prior to the law. So it wasn’t a matter of law you twit.

        So then we look into the actual facts of the animus. We see that countries that actually improved their vetting were removed despite not changing the ethnic make up of their countries. This implies that the policy trump implemented was facially neutral and not based on ethnic makeup or animus.

        Stop being so dishonest.

        1. My you’re a dishonest little sot. It was never a question of law, it was a question of animus.

          Well, it was a question of law with respect to the standard of review when a court looks behind the face of the Proclamation: rational basis. And as the Court said:

          Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny.

          This makes the inquiry into the meaning of “facially legitimate and bona fide” less urgent since it is so easy to produce rational basis for just about anything.

          It was also a question of law as to whether the “Plenary Power Doctrine” still survives (it does).

          1. The whole basis for oppossing the ban as it would its way through courts was based on animis which is not an exception proscribed in the law in question. It wasn’t about the law. It was a novel theory liberals pushed to implement an exception to the law through judicial means. The majority flatly stated the law was what the law was.

        2. It was never a question of law, it was a question of animus
          Which…is a question of law. The Court decided it didn’t need to decide if there was animus there.

          Stop being so dishonest.
          Stop thinking everyone who disagrees with you is lying, it’s weird.

          1. No. It wasn’t a question of law. Which is why you are dishonest. The law did not make exceptions based on executive Animus. That was an invented metric created by liberals and lower courts. When your side argues every other president could have pushed the restrictions you lose the argument that it was about the law. At that point it goes to motivation for the restrictions which is not a carved out exception to the executive perogative. So stop being dishonest you twit.

      2. It’s been a few hours since I read the dissenting opinions, but I do recall that the judges performed their own research as to the facts from publicly available sources. Facts were thrown about all over the place in these opinions. Also, wasn’t there a preliminary injunction hearing in the trial court where evidence was heard?

    3. We’re still waiting for the complete and total shutdown of Muslims entering the U.S., though. Otherwise you’ve outlined one more broken campaign promise.

      1. I’m still waiting for liberals to stop relying on complete and utter ignorance and a misunderstanding of statements. Trump had modified and narrowed his immigration policies well before the election. I’m sorry that you rely on lefty hyperbolic ranting as your main source of information.

  5. The comments on this Blog, long ago, before even WaPo hosted it, used to be of such high quality. No longer. And the Trump Derangement Syndrome which runs rampant through the left seems to be more virulent than Mad Cow Disease, BSE, when it comes to killing brain function. I used to read the comments for enlightenment and valuable insights. No longer. Now it’s just comic relief and schadenfreude.

    1. Man, you nailed it.

    2. Or, maybe, it’s you who have changed?

      1. Nope. And you haven’t changed either. Your comments were always worthless. Only now they are so ridiculous as to create an amusing caricature of leftists.

        1. In 2 sentences you switched from I haven’t changed to I have.

          Not a great testimony to your objectivity.

          1. Do you consider yourself to be all leftists? If you parse his words he never stated “all leftists”, in fact he said it runs rampant, not that it runs in totality.

            1. Read it again, Jesse.

    3. Your comments, over time, mark you as a right-wing bigot, DjDiverDan. The main difference I perceive between you and your predecessors — the ones who hated Italians, Jews, the Irish, Asians, women, eastern Europeans, Catholics, atheists, etc. — is that you are too cowardly to want to be known as a bigot. At least earlier waves of bigots acknowledged it.

      1. How is your anime going? Still really into Japanese stuff?

      2. So you’re saying DjDiverDan used to be a Democrat? Because otherwise I don’t see how his predecessors would be “the ones who hated Italians, Jews, the Irish, Asians, women, eastern Europeans, Catholics, atheists, etc”

      3. Do you get a nickel every time you write the word “bigot”? If so congratulations on being a millionaire.

  6. “which normally bars discrimination based on religious denomination”

    Eugene, do you think the Lautenberg Amendment, which gave preferential treatment to Jews from the former Soviet Union was unconstitutional because it discriminates based on religious denomination?

  7. I am eagerly anticipating Ilya Somin’s take on the decision. Should be a barn burner.

    1. Bull Cow May be in a padded room at the moment. SCOTUS utterly rejected the “reasoning” asserted through his inane babbling over the past few months.

      1. Somin has been tilting at windmills for a long time; I’m sure he’s fine.

        1. I do like how a 5-4 decision is ‘utterly rejecting’ the losing side, though.

          1. Conservatives have been losing the culture war so long I am willing to cut them some slack on the exaggeration while they celebrate this one.

          2. Roe was 5-4, and now it’s a Superprecedent.

            1. Roe was not 5-4.
              Other than that: solid comment.

              1. How about the one where homosexuals can pretend to be married?

  8. So when this issue first touched on the horizon, this blog noted the plenary powers doctrine and how it could very well allow direct religious discrimination in immigration.

    This was before they realized they needed to oppose it because Trump.

    I am no Trump fan but the hoop jumping has been an entertaining sight.

    1. You might want to distinguish a bit more than just ‘this blog’

  9. CJ Roberts noted (deep in the opinion) that countries where 92% of the world’s Muslims live are not covered by the ban, so how the hell could this be religion-based animus? That one fact pretty much destroys the whole premise of the case, even if you reject the plenary power doctrine. But, wait, there’s more. Three of the eight countries have come off the ban after fixing their reporting issues. And all of the eight countries were initially identified by President Obama’s administration according to criteria having nothing to do with religion. More still: one of the original eight countries is almost totally Christian (Venezuela), one is about 50-50 Muslim-Christian (Chad), and another has probably never had a Muslim set foot on its soil (PRNK). And the Christian and atheist countries are still on the ban!

    1. …but, but, Trump is a dick! Yeah, not a legal argument.

      1. Shhhh, who needs facts when you can just scream “but Trump!” or “raciisssss!!!” or some other incoherent dogmatic nonsense?

  10. Does it seem strange to people that the Court decided not to take over all travel visa applications (based on some invented Consitutional authority) from the State Department and conduct a hearing before a judge for every applicant?

  11. Either we are a sovereign nation, or we are not. Either the president holds executive powers or he does not. The people are free to remove the president from office when he term is over, and a future president can certainly change this policy. That is how a republican democracy works – and how our Constitution works. Those impatient with such petty details will always have a case of the vapors over these things.

    1. Clearly the Constitutional argument has won the day. Your policy argument is pretty bad, though.

      There’s a lot of middle ground between ‘the President can ban any group he wants for whatever reason’ and ‘we have completely open borders and no republic.’

      1. He didn’t make a policy argument. You invent strawmen out of thin air. Impressive.

        1. Either we are a sovereign nation, or we are not.

          1. You think that’s policy? Wow sarcastro. Stretch out that strawmen until you can connect it back no matter how trivially.

  12. the Establishment Clause (which normally bars discrimination based on religious denomination, including the use of neutral rules in a discriminatorily motivated way)

    What is the authority for this statement? Normally, it is the Free Exercise Clause which bars religious discrimination, not the Establishment Clause.

    Even if the US were to enact a “Muslim ban,” that would still allow a wide variety of religious views into the country — Chrisitans, Jews, Buddhists, Hindus, atheists, agnositcs, etc. I find it hard to believe that such a rule would “establish” anything.

    1. That’s nowhere near what current Establishment Clause jurisprudence says.

      1. Can you cite a case that says that. (Specifically Establishment Clause, not Free Exercise Clause.)

        1. Lemon.

          But more specifically it’s streamlined (and more permissive version) in the form of Kennedy’s Endorsement test from the more modern Christmas Creche cases.

    2. Agreed. I wonder if an actual Muslim ban would pose a free exercise problem if US Muslims claimed they needed to import more foreign Muslims as part of their religion.

      I also wonder if you could impose a ban on, say, anyone who states that they disagree with the 1st amendment. Or less broad, anyone who supports the death penalty for leaving their religion. 88 percent of Muslims in Egypt support that.

      EV’s take seems to be that it would be constitutionally permissible.

      1. Based on this case, it wouldn’t – as long as a facially neutral reason that survived the rational basis test could be cited for the ban.

  13. The problem with the whole animus argument (at least as presented in this case) is one glaring fact: Politicians Lie.

    Trump promised a Muslim ban. But political realities are such that he cannot deliver.

    So he ordered what is a fairly reasonable ban based on political instability in certain countries — which was based on determinations made by the Obama Administration. As even Ilya Somin conceded, the same ban enacted by the Obama Administration would have been beyond challenge.

    Then Trump brags to his base that he enacted a “Muslim ban” when he did no such thing.

    If the Court had gone the other way, that would open the door to judicial scrutiny of political speech. You promised X but delivered Y, well Y has animus because X is bigoted. Especially if you lie and say that you really delivered X. IMO, this is a can of worms the Court did not want to open.

    1. Agreed that the court didn’t want to open that can of worms, and never has. But I want it to live in that can.

    2. Except Obama has a history of animus towards Muslims along with overtly negative statements about Muslims. So Obama rejected the Islam of his childhood and two father figures and embraced Christianity as an adult. To me that clearly shows that he has made a value judgment that Islam is an inferior religion.

      The overtly anti-Muslim statements involve ISIS. The members of ISIS believe they are faithfully practicing Islam and yet Obama makes not only derogatory remarks about their religion but also seemingly racist comments about their ignorance with respect to Islam…like he as a brilliant American knows better than the ignorant Arabs.

      1. Not to mention the thousands of Muslims killed by his armies during his years in office.

        1. Yeah, I would classify that as “animus”.

          1. That’s because you don’t know what animus is.

    3. Yep. Scalia stated the problem in a concurrence:

      “The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted: “Congress shall make no law . . . prohibiting the free exercise [of religion]. . . .” This does not put us in the business of invalidating laws by reason of the evil motives of their authors. Had the Hialeah City Council set out resolutely to suppress the practices of Santeria, but ineptly adopted ordinances that failed to do so, I do not see how those laws could be said to “prohibi[t] the free exercise” of religion. Nor, in my view, does it matter that a legislature consists entirely of the pure-hearted, if the law it enacts in fact singles out a religious practice for special burdens. Had the ordinances here been passed with no motive on the part of any councilman except the ardent desire to prevent cruelty to animals (as might in fact have been the case), they would nonetheless be invalid.”

  14. Hooray! The Constitution is not a suicide pact! The members of ISIS believe they are good Muslims faithfully serving Allah and liberals believe they should be allowed to immigrate here based on some absurd notion of “freedom of religion”. Sanity and common sense won the day!

    1. No one thought ISIS should be allowed to immigrate here, SC.

      1. That’s what you say, but your side wanted to remove the practical ability to keep ISIS out.

      2. That makes you an anti-Muslim bigot because ISIS believes they are faithfully practicing Islam!! If I recall correctly you also posited Obama is a fake Christian which makes you a Birther! Have you been fitted for your #MAGA hat yet??

      3. Sarcastro,

        But exclusion of ISIS is certainly exclusion on the basis of ideology, right?

        It could also be exclusion on the basis of religion, depending on how you define religion.

        1. At least historically most major religions embraced war and forcible conversion as fundamental to the religion. Obviously we can bar terrorists on the grounds of terrorism but the language Obama used against ISIS or Bush used against AQ commonly referenced Islam and how they were distorting Islam?that is racist and anti-Muslim language! The members of ISIS believe they are being faithful to Allah and that they are good Muslims and to say otherwise shows disrespect for Islam.

          Also the Establishment Clause has little to do favoring one religion over another it is a federalism provision fundamental to preventing tyranny. A tyrant nationalizes religion and then takes control of said religion. So Americans should be given wide leeway to express their religious views but foreigners should not be given that leeway with respect to religion. Their religion should be viewed as an ideology and we are free to make value judgments about ideologies.

        2. Islam is not ISIS. It is not like ISIS in it’s purpose, it’s aim, it’s diversity of vision, people, faith. You are sowing the analog of arguing the KKK is basically like Christianity

          1. ISIS is ideology. There’s no arguing that.

            Arguably, it is also religion. Again that is arguably, and I would argue that it’s not religion for purposes of the Constitution.

            I will completely agree that ISIS is not Islam and Islam is not ISIS. I never said otherwise, but it’s guaranteed you will continue to attack this strawman.

            1. “ISIS is ideology. There’s no arguing that.”

              Sure there is. I’ll argue it right now: it is not an ideology, it is a terrorist group. Members of ISIS are not discriminated against for what they believe, but for what they do. You are conflating being in a terrorist group with thought crime.

              “Arguably, it is also religion. Again that is arguably, and I would argue that it’s not religion for purposes of the Constitution.”

              It isn’t arguable, as even you won’t argue it. It isn’t a religion.

              1. The practitioners of the religion get to decide if it is a “religion”. The men of ISIS are practitioners of Islam and they believe they are faithfully serving Allah. I know because you are a powerful American you believe you get to decide what constitutes a religion but you don’t! Poor brown foreigners are capable of practicing a religion as they see fit. Believe it or not religion is not some innocuous thing it is actually a very powerful force for both good and evil.

                The Muslims in ISIS are practitioners of a RELIGION that is antithetical to American values and quite frankly I believe the Muslims in Saudi Arabia also posses values that are antithetical to our values.

                1. “The practitioners of the religion get to decide if it is a “religion”. The men of ISIS are practitioners of Islam and they believe they are faithfully serving Allah.”

                  Ok.

                  So then you know that their religion is Islam, and not ISIS.

                  How is that a rebuttal of anything I wrote?

                  1. Exactly! Islam compels them to engage in violence and convert infidels.

                    Members of ISIS are Muslims which means you are in disagreement with Obama who believes they are fake Muslims because he apparently is an expert on lecturing to brown foreigners about how they don’t know how to be good Muslims.

              2. Topher, You’re incoherent. ISIS carries out terrorism on the basis of their ideology. And their ideology is a religion, both in their view and in the reality of the linguistics of that term as a general matter. My specific argument is that it is manifestly not what the US Constitution means by “religion,” since that would contradict everything else in the Constitution.

            2. ISIS is part of the Jihadi Movement!!! Btw, do you think foreigners that practice misogyny and polygamy and oppose LGBT rights should be allowed to immigrate to America??? I certainly don’t!! The typical foreign Muslim would a very right wing social conservative which you most likely don’t like in the form of a white Christian. And yes I would support an immigration policy that discourages Christian Conservatives and Mormons from coming here as well.

              That said, first and foremost our immigration system should be 100% merit based and “diversity” should have no place in our immigration system. Educated people should tend to be more tolerant and even if they aren’t in theory they be a net positive.

              1. ” And yes I would support an immigration policy that discourages Christian Conservatives and Mormons from coming here as well.”

                No, you wouldn’t.

                1. I am a #neverTrumper and a social liberal so why would I want more social conservatives in the country?? I believe the Masterpiece baker should bake the f’ing cake and he is simply being a douchebag because Christian Conservatives lost on the issue of SSM.

          2. The second incarnation of the KKK was made up of WASPs and it was overtly Protestant and opposed to the Catholic immigrants that were part of the Great Wave!!

            1. You forgot to add that they were democrats.

              1. They were Democrats but now Republicans defend the Confederate memorials erected and funded by Democrats to honor Democrats like Jefferson Davis.

  15. I completely agree with the decision. Control over our borders should be at the absolute discretion of our government. Without it, we are not a nation at all. The Ds are playing a dangerous game.

  16. EV seems to suggest that in the Mandel case, if the government’s facial reason was the disapproval of Mandel’s political ideas, then perhaps that would not have been a legitimate reason and the decision to exclude him could have been set aside. But the overall conclusion seems to be that the US could exclude him on the basis of ideology (or other such factors). Maybe this could be explained further?

    If the answer is merely that some trivial pretext is required, that would seem rather unsatisfactory. But I should think it would also be unsatisfactory if the US could not decide to exclude immigrants who are self-avowed revolutionary Marxists, or who have a stated goal of overthrowing the US government, for example.

    1. If the answer is merely that some trivial pretext is required, that would seem rather unsatisfactory.

      But as Eugene pointed out, that was the exact situation in Mandel, where Mandel was denied entry because of his speech and political beliefs (Marxist). The “facially legitimate” reason given was Mandel’s “flagrant abuses” during his past visits to the U.S., which appeared “merely to have been his speaking at more universities than his visa application indicated.” The dissent argued that “It would be difficult to invent a more trivial reason for denying the academic community the chance to exchange views with an internationally respected scholar.”

      As Eugene put it, the bottom line is:

      All that was needed was a facially plausible reason for the governmental decision, and one was provided here (whether or not it’s the true reason, or a reason to which the policy is narrowly tailored).

      As the Court put it, two important reasons were:

      For one, “[j]udicial inquiry into the national-security realm raises concerns for the separation of powers” by intruding on the President’s constitutional responsibilities in the area of foreign affairs. ?For another, “when it comes to collecting evidence and drawing inferences” on questions of national security, “the lack of competence on the part of the courts is marked.”

      1. Right. But EV concludes “The U.S. has nearly unlimited power to decide when foreigners are admitted to the country, even based on factors (such as ideology, religion, and likely race and sex) that would be unconstitutional as to people already in the country.”

        That makes sense to me, but if the U.S. can do that, it ought to be able to state forthrightly what it is doing.

        This is academic. In the instant case, I don’t think it was based on religion anyway. It was based on the concentration of terrorist activity and the lack of tools and data systems available to vet individuals. But the point is, even if it was based on ideology or religion, it would be permissible.

  17. Tears here, too.

    The tears of losers.

    1. The Supreme Court giveth, the Supreme Court taketh away.

      How did you feel about the Gay Marriage cases?

      1. The baker? You sure you can handle this much crying? Won’t you get dehydrated?

        As for Obergefell, well I stated my support for SSM a long time ago–back before the Volokh Conspiracy was corrupted by the WaPo–but I will say I don’t like how we got it. And that baker case shows how fragile it might be.

        Why? How do you feel about them?

        1. I too supported SSM in the 1990s and I agree it is always better to go through the political process which I believe was working with respect to SSM. Heck Trump even supports SSM!

          Obergefell without question makes prohibitions on polygamy unConstitutional and it relates to this subject because foreign Muslims practice polygamy and so right now they can’t immigrate to America because several of their marriages will be voided. Plus if you want to talk about “animus” the Federal government’s treatment of Mormons that practiced polygamy rivals any animus directed at the LGBT community!!

          1. The correct response should be not to support government defined marriage (mostly because it is I’ll defined per divorce cases). Remove the change in status for citizens who are married and enforce marriages through contract law and actual contracts.

            1. I agree 100%. Another big area LGBT were discriminated against was in things like pensions but the way you correct that mistake is advocate for 401k because most pensions are unsustainable anyway.

  18. In an analogous Establishment Clause case, a federal judge in San Diego is hearing oral argument next month regarding the San Diego Unified School District’s “anti-Islamophobia initiative,” which expressly singles out Muslim students for special accommodations and authorizes an Islamic advocacy group, the Council on American-Islamic Relations, to vet and revise school curricula to make sure it portrays Islam more favorably.

    In their motion for preliminary injunction, the plaintiffs argue that, under strict scrutiny, the initiative is unconstitutional because it expressly discriminates in favor of one religion. Here’s the link to plaintiffs’ brief: https://goo.gl/Qb1TVc

    1. It’s not an analogous case. Today’s decision said foreigners seeking entry into the country effectively have no constitutional rights and can’t challenge government decisions about them in court. Totally different situation from students at an American public school, who have constitutional rights regarding the school’s decisions and can challenge them in court.

  19. I think that about sums it up. I wasn’t a fan of some of the more extreme arguments (such as campaign statements are inadmissible as evidence of intent to discriminate) or arguments that the ban was adequately supported, but I thought from the beginning the ban would likely be upheld because cases like Mandel were on point. Our immigration law is filled with discrimination and there’s no reason to think that would go away overnight.

  20. Dear Professor Volokh,

    As you know, I’ve been a commenter in your blog since quite early.

    For some time, I’ve advocated a position that has seemed snarky, even trollish, that there is a relationship or correspondence between the set of ideas the Supreme Court has used to describe the way the prerogatives and decisions government makes about foreigners, and the set of ideas the Supreme Court has used to describe the rights and decisions made in the abortion context.

    This idea has seemed snarky because it’s basic premises – characterizing foreigners as lacking constitutional rights, characterizing government prerogatives as involving “sovereignty” or autonomy or rights implicit in the very concept of government, all seemed so crazy that I suspect you and your co-conspirators thought my references to old cases like Eisentrager reflected obsolete language long swept away as archaic.

  21. You mean the Constitution doesn’t apply to non-citizens not-resident in the US?

    Shocking.

    1. Not actually what the opinion said.

      1. It did state, however, that non-citizens do not have a right to enter the US.

        1. Which view was not exactly widely contested, even on the left.

          1. Unless you cross illegally and scream asylum.

          2. Oh, right.

            It was “non-citizens have the right to enter the US . . . provided that some seditious leftist groups want to sue on their behalf.”

            Yep.

  22. (Cont)

    But here we are. A Supreme Court majority has relied on these very concepts, and this very language, as the heart of an important and current decision, as you yourself acknowledge in this post. Foreigners lack constitutional rights, this lack of rights mean their welfare isn’t the courts’ business, sovereignty implies a sort of national dignity requiring unfettered choice in matters implicating national sovereignty – all these concepts definitely have some resemblance to the concepts of choice implicit in the dignity of personal autonomy, not to mention the constitutional rights question, that were the basis of the abortion cases.

    I understand the very concept of national dignity having any similarity to personal dignity is inimical to a libertarian perspective, and you and your co-conspirators may be so dismayed by this decision as to think it awful, or totally incomprehensible. It comes from outside your conceptual world.

    But I respectively suggest that this decision makes my thesis a very viable one. And though I think the Court’s prior cases (e.g. Roe and Eisentrafger) attempted to root its decisions about when constitutional rights apply and when they don’t in the constitution’s text, I agree that the Courts’ concepts of personal and national dignity and autonomy, both in the abortion cases and in cases involving foreigners such as this one, come from outside it.

  23. (Final)

    I respectively suggest the language used to describe both is actually quite similar. I further suggest this similarity is not a coincidence.

    In the years I’ve commented on your blog, you’ve never replied to my comments presenting this thesis.

    But this once, just this once, I’m going to ask you to take the thesis seriously, think about it, and give me a serious and thoughtful reply.

    1. I’ll get the ball rolling with the notion that SCOTUS never said that foreigners or fetuses lack constitutional rights.
      They lack certain rights; and certain other rights they possess are balanced against other people’s rights.

      1. Smooth, you are splitting the baby with Reader.

        Your comment “They lack certain rights; and certain other rights they possess are balanced against other people’s rights.” implicitly accepts his premise. If they have constitutional rights at all, they have to possess them all.

        Constitutional Rights are conveyed by God or natural law. They are implicit. They are inherent. The constitution does not grant these rights, it binds government to honor and protect them FOR CITIZENS. “For ourselves and our posterity…” (read this as “ourselves and our decendants”) is the operative phrase. Non-citizens are not part of that group “For ourselves and our posterity” unless and until they becoming naturalized, at which point they have been “adopted” so to speak.

        In short, non-US citizens certainly in the libertarian view have natural rights. They do NOT however enjoy protection of them under the US Constitution because they are not part of “ourselves and our posterity”.

        1. It seems to me that the Court’s cases have disagreed with each of the propositions you’ve stated. Eisetrager based the scope of the Due Process Clause as used in the Constitution’s text, concluded the word “person” as used in the onstitution was never used with an extraterritorial meaning, andrejected the “extraterritorial application” of the 5th Amendment, at least to alien enemy combatants.

          Roe used a very similar textual analysis to conclude the word “person” lacked “prenatal application.” But it went much further than this. It was Roe that introduced the concept of the personhood binary, either full rights (person in the full sense of the word) or no rights at all. More importantly, Roe and later cases completely rejected the sorts of quasi-religious natural-law conceptualizations that were so familiar to the Framers. Several Justices held that the concept of natural rights connected to the concept of creation or a creator are religious concepts that the First Amendment precludes a secular state from even considering. Justices Stevens and Ginsberg took this idea to its logical limit when they said, in a concurrence in the first Carhart case, that if you can lawfully kill something, it’s just plain irrational – it fails rational basis – to be concerned about whether its manner of death is “barbaric” or how much pain you inflict on it before it dies.

  24. A surprising vote for sanity from the SC. Too bad it doesn’t happen more often. Things will improve as soon as that leftist cvnt Ginsberg kicks the bucket. It should have happened years ago.

    1. leftist cvnt Ginsberg

      Man, the left sure has an incivility problem.

      1. Seems to be a human-wide condition.

      2. In his initial draft he called her a “rootless cosmopolitan”.

        1. Do you think he was sitting there, pen in hand like Sideshow Bob, and all of a sudden exclaimed, “Le mot juste!”

    2. I keep hoping one, or all, of the proggie judges will die during Trumps first term. Maybe they should all go on a group camping trip or something? Maybe we’d be lucky and they’d be mauled to death by a bear all at once!

      But more seriously, if Trump can get one or two more sane people on the court, that will go a looong way on saving America from insane leftists.

      1. And drive the American Constitution Society nuts. (Not to be confused with the Constitution Society.)

  25. This seems to be well-taken, not least because other speakers as controversial as Mandel (for instance, Edward Snowden) can and do give speeches to US audiences over video, without any need to come to the US. And I dare say that if the US ever tries to forbid that, the audience’s First Amendment claim will be upheld.

    1. And what if they forbade it only for white speakers?

      1. I don’t think there would have been any constitutional issue with the President, back in the apartheid days, denying entry to all white South Africans, but permitting entry to non-white South Africans. Ditto Zimbabwe/Rhodesia in the Ian Smith days.

        I doubt it would have flown politically, but that is the point.

  26. But, muh Feelz…

    1. He posted, brimming with joy.

  27. A learned synopsis refreshingly free of spin or partisanship. Thank you kindly, Mr. Volokh.

    1. LOL

      “learned synopsis” my ass.

  28. Good. I didn’t want Obama to get in trouble for when he banned them previously.

  29. As I said in another post, I have never been of the mind that foreign nationals should have the same protections as US citizen, in any respect. I suppose technically they do thanks to the 14th (IIRC), but that was a mistake IMO. They should not. That doesn’t mean we should be too horrible to them, but just that illegal aliens shouldn’t be able to sue the US Government over stupid shit like they can now. At least in this one context something sane has been upheld.

    1. That’s what we call “begging the question”. Before you can figure out whether an illegal alien should be able to do something, you first have to figure out whether they’re an illegal alien in the first place.

      (Not that this case was about illegal aliens, but I still thought I’d clarify.)

      1. And that basically should be the extent of what we have to do in terms of due process before booting them straight out, are they a citizen or somebody here on a currently legal visa… If not, they should have no recourse of any kind beyond definitively determining they have no legal right to be here. Once we know they are not here legally we should be able to throw them on a boat/plane 30 seconds later, and there should be nothing they can do about it.

  30. Obviously, Eugene is not much of a lawyer. Of course, his previous writing failed to display much expertise either, so this should not be a surprise.

    This ruling should not be a surprise. The entire basis or the court action was essentially, “Trump said mean things about Muslims and so anything he does must be because he is discriminating against Muslims.” This entire argument was undermined by the actual facts of the policy. The policy, even the original one, impacted a small number of majority Muslim countries with a small percentage of the world Muslim population. Further, it set specificy procedural milestones those country to impliment to get themselves off the list.

    The Presidential power Trump used was in no way different from than wielded by Obama or G.W. as President so the entire case was not about, “Does the President have the power to do this” but rather, “Trump says mean things so he should not have the same power other presidents had.” As soon as this got past Progressive judges who rule based on “FELZ” and got to the SC this was always going to be a loser.

    There may be an argument that says presidents should not have this power. This argument was not made, nor was it suggested that giving the president this power was not the intent of Congress. This was an attempt to use the Courts to override an election.

    Eugene, feel free to take notes.

  31. Part of attaining ultimate victory in these social-legal-political scrums is the ability to conjure up and amplify the perfect meme when heavy-duty propaganda must be unleashed. The left just did it brilliantly with crying children behind bars, or the tiny bawling child on the cover of Time magazine being towered over by a menacing President Trump.

    Trump fights back (always) with a rather good replacement of the awkward mouthful “illegal aliens” with the more direct “invaders.”

    1. It’s also very typical of the left that the girl on the Time cover DID NOT have any of the horrible stuff actually happen to her that they claimed. It was 95% fabrication. Because the left can’t argue things based on facts or logic, because their arguments almost universally lack all those things.

  32. Question – not a comment.

    If Mexico continues to expedite travel and drugs from Honduras and El Salvador – AND if they elect this nutcase who wants “reconquista” and mass invasion of our border.

    Has this decision paved the way for him to deny entry from Mexico and parts south?

    1. Probably could be argued that way 🙂

  33. The president can restrict immigration

    In 1952, Congress passed the Immigration and Nationality Act (INA), which expressly authorized the president to suspend the immigration of any person, class of people or group of people into the United States for public health, public safety or national security reasons.

    But:

    Yet the courts have limited the president’s exercise of this power so that he cannot base it on First Amendment-protected liberties, such as the freedoms of speech, religion and association. So he cannot bar an immigrant because of the immigrant’s political views, religion or colleagues.

    However, such court decisions are in conflict with the discretion of the 1952 Immigration and Nationality Act, which contains this clause:

    GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND EXCLUDED FROM ADMISSION SEC. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:…(27) Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States;

    That language provides complete discretionary authority for the executive order.

    1. Yeah, because we should be REQUIRED to let in admitted communist revolutionaries, because that’ll be GREAT for the country. I read about a case where they tried to bring in a communist speaker on a speaking tour in the 70s and had to use other reasons to bar him entry. So dumb. We don’t owe foreigners the same rights Americans have. There is no reason we should not be able to ban dangerous foreign nationals because of their political views, which might overlap with religious views in the case of Islamic extremists. That’s just obvious common sense.

    2. “Yet the courts have limited the president’s exercise of this power so that he cannot base it on First Amendment-protected liberties, such as the freedoms of speech, religion and association. So he cannot bar an immigrant because of the immigrant’s political views, religion or colleagues.”

      I do not think this is true. Can you provide examples (other than the lower court cases thes USSCT just reversed)?

    3. The language for applying the First Amendment comes in the Immigration and Naturalization act of 1965, Act of 1965, but that Act specifically does not supersede Section 212 of the 1952 Act.

  34. Most Muslims are not here as citizens, but on a visa, and as such can be deported if it is shown they are subversive, as Wahhabists and Salafists are.

  35. When is the country – SCOTUS or Congress – going to rule against arrogant judges trying to set policy for the whole country as opposed to simply applying the law?

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