The Volokh Conspiracy

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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.


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.