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Initial Thoughts on the Supreme Court's Terrible Travel Ban Decision

Some preliminary comments on a badly flawed ruling.

Earlier today, a closely divided Supreme Court upheld President Donald Trump's policy barring most entry into the United States by citizens of five Muslim-majority nations. Chief Justice John Roberts' opinion for the Court took note of Trump's numerous statements advocating a "Muslim ban," and recognized that they are relevant evidence. In virtually any other circumstance, a policy with such a clear discriminatory motivation would be struck down as a violation of the First Amendment, which, among other things, forbids government policies that discriminate on the basis of religion. But the majority refused to do so because they concluded that presidential decisions on immigration policy are subject to only very minimal "rational basis" review. For reasons I summarized here and in an amicus brief I coauthored on behalf of several constitutional law scholars, there is no good justification for exempting immigration policy from normal standards of judicial review. This is especially true in a situation where evidence strongly indicates that the official national security rationales for the policy are just pretexts for the real purpose: carrying out Trump's bigoted "Muslim ban" promise. Whatever deference might normally be due to executive national security expertise surely does not apply in a situation where national security is not the true motive behind the challenged policy.

Sadly, the ultradeferential approach adopted by the majority can just as easily rationalize virtually any discriminatory exclusion of immigrants or refugees. The executive need only structure the policy in a way that targets a characteristic closely correlated with the forbidden classification (in this case, residence in a Muslim-majority nation), and concoct some sort of legitimate-seeming justification for the policy, perhaps supported by a cursory "review" whose supposed recommendations need not even be consistently applied.

Today's decision does have two notable bright sports. The majority does not reject the relevance of Trump's statements on the basis that they occurred during a campaign. Indeed, Roberts notes that this "extrinsic evidence" can be weighed. This implicitly rejects numerous claims that campaign statements cannot be considered as evidence of unconstitutional discriminatory motive, and prevents today's decision from creating a generalized road map for discriminatory policies, under which officials broadcast their true purposes during a campaign, and then speak more carefully afterwards. Unfortunately, the decision does create a very similar road map for discriminatory immigration policies.

The second bright spot is the belated overruling of Korematsu v. United States (1944), the notorious decision in which the Supreme Court upheld bigoted internment of some 100,000 Japanese Americans during World War II. Today's decision notes that "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history,and—to be clear— 'has no place in law under the Constitution.'" That is a welcome statement. But the majority's statement that "Korematsu has nothing to do with this case" is much harder to credit. Both rulings involved closing judicial eyes to the true purposes of a discriminatory policy largely on the basis of special deference to supposed executive expertise on national security. Such excessive deference is no more justified today than during World War II.

I will have more to say about the Court's badly flawed travel ban decision later today and tomorrow, including in publications elsewhere that I will link to at the Volokh Conspiracy, as soon as possible.

UPDATE: It is perhaps worth noting that I have previously discussed the administration's argument (endorsed today by Roberts) that the travel ban is not discriminatory because it doesn't cover all the Muslims in the world, here and here.

UPDATE #2: I should note that the majority's reasoning leaves open the possibility that campaign statements (and other "extrinsic" evidence of motive) might be excluded in future immigration cases. Roberts says that "[f]or our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review." But the possible constraints on looking "behind the face" he cites are all specific to immigration policy, and do not apply elsewhere. And once Roberts did choose to "look behind the face," he did not distinguish campaign statements from other evidence of discriminatory motive.

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  • VinniUSMC||

    This article brought to you by TDS.

  • Sarcastr0||

    I'm pretty sure Prof Somin's position about immigration predated Trump by quite a while.

  • Careless||

    It can be two things.

  • VinniUSMC||

    Did I claim otherwise?

    This "badly flawed", "terrible ... decision" of an article, and lack of reason (totally on principle though), brought to you by TDS. I know that Ilya is capable of reasonable thought, just not when it comes to Trump and/or immigration.

  • Sarcastr0||

    Not everyone who is passionately against a Trump policy is like that because of Trump.

  • JesseAz||

    It would be nice if they didn't show their hand but basically arguing "any other president could have done this BUT TRUMP" which was argued in San Francisco. So not sure why you are arguing what you are... other than partisan hackery.

  • Sarcastr0||

    Which is based on things Trump said and did, not just Trump's existence.

    Arguments you don't like aren't all in bad faith.

    Accusing me personally of bad faith doesn't do your argument any favors either.

  • KevinP||

    I post this in every Ilya Somin travel ban thread because he keeps ignoring the guiding statute, unlike the Supreme Court.


    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

  • retiredfire||

    A terrible decision...except for the fact that Congress has passed a law that says he can do it, and the Constitution says nothing that prevents it.
    The sooner "legal" minds realize that the Constitution doesn't apply to everyone in the world, it will be a good start.
    Then, if we could get them to realize that it was meant only for citizens and legal residents, it would be even better.

  • Dan S.||

    The Constitution applies to all actions of the United States government, and "all persons" means all persons. Nevertheless, this decision would seem to be the correct one, given the law that authorizes such Presidential actions.

  • Placeholder Name||

    More Trump derangement syndrome on display here.

    Why limit the heightened analysis to just the travel ban? How about drone strikes or other military action? Trump keeps launching missiles at ISIS, which is overwhelmingly Muslim. This conduct violates the Establishment Clause. We need the judiciary to step and in and review these strikes to make sure that they are appropriate.

  • GabrielSyme||

    And oppression of foreign Muslims has a long history going back to the Barbary Wars, so clearly the courts need to step in like they did in the South over historical oppression of blacks

  • Joe_dallas||

    And oppression of foreign Muslims has a long history going back to the Barbary Wars,

    Dating back to the barbary wars when attacking/pirating US vessels

    Better description would be foreign muslims have a long history of oppression of US citizens since the barbary wars.

  • Brett Bellmore||

    Yup, suicide watch.

  • Sarcastr0||

    Did you read the post? It's the standard protocol for what idealists do when they lose - focus on bright spots.

  • Brett Bellmore||

    It's standard protocol for what the obsessed do when they lose: Double down on what they're wrong about.

    No admission at all that he could have been wrong about any of it. The majority opinion takes his position apart in detail, and he seems not to have noticed.

  • Sarcastr0||

    Well yeah, that's how ideals work. If you want pragmatism, go hang out with Prof. Kerr.

  • Brett Bellmore||

    I want him to at least notice that the Court addressed and rejected his position.

  • santamonica811||

    Brett,
    I thought that was what he did do. (He also opined that he thought the 5-4 majority was wrong, had deliberately ignored certain things, had come to the wrong conclusions, etc, but of course that is normal, expected, and *desired* in opinion pieces.)

    I agree that he did not say, "Hey, I raised these arguments and SCOTUS, by that one vote, rejected them in total." But I do not see how you can read his OP and not see that implicit point. If your point was that he did not come out and say it explicitly; I guess you are correct about this.

    Why that matters to you...that I am not sure about.

  • Rеv. Arthur I. Kirkland||

    I'm surprised that they are letting him post from his padded room.

  • Rev. Arthur L. Kirkland||

    Prof. Somin's preference will prevail over time, Bigoted Mini-Me. It always does in America. What is uncertain is whether Prof. Somin will recognize that he deserves better political playmates than he has found among our right-wingers.

  • retiredfire||

    You're very confident that our overlords on the bench will, once again, tell the citizens that they are just not enlightened enough to make their own decisions for themselves, aren't you?
    Maybe you'd better realize that, at some point, there will be a backlash, and it won't be pretty.

  • JonFrum||

    Whatever Trump said during the campaign, this is not a 'Muslim ban.' It is a national ban, as is clear by the plain English text of the order. There are over a billion Muslims in the world, and the greater majority are not included.

    This article seems to be little more than 'I don't like Trump.' I don't either, but I deal with him rationally. And honestly.

  • ||

    Exactly. How can it be a Muslim ban when it doesn't include countries like Indonesia?

  • Brett Bellmore||

    The same way it can be a Muslim ban when it does include countries like Venezuela and North Korea: It didn't go out of its way to avoid effecting any Muslims!

  • santamonica811||

    Also exactly. If I promote a law saying that, "No blacks from North Dakota, Maine, Washington state, and Hawaii can vote.", well, that can't be evidence of anti-black bias, since there are so many black people living in the other 46 states.

  • Brett Bellmore||

    But notice that you specifically said "blacks", whereas the actual ban made no reference to Muslims. So you put into your hypothetical exactly what was lacking in Trump's actual policy.

  • JesseAz||

    Who needs legal logic. Leftists gonna strawman.

  • damikesc||

    You are referencing citizens there, not illegals.

    And Trump's order didn't specifically ban Muslims ONLY from those countries.

  • Sarcastr0||

    Do they even realize they're conflating illegals and immigrants anymore?

  • Jimmy the Dane||

    Decision seems about right to me. Every sovereign state has an ABSOLUTE right to decide who lives within its boundaries.

    Soy boys and liberal loser are going to weep all summer long. Fine by me.

    The sad thing is this should have been a 9-0 decision.

    No alien has the right to enter this country. Period. No need to discuss it or debate it. Time to just start deporting all the teet-sucking illegals.

  • Junkie||

    I question your "period": a green card holder has the right to enter the country, unless their green card is revoked. V1 didn't allow them in back in.

  • Jimmy the Dane||

    A green card holder is permitted to enter this country because the LAW currently says so. They have no constitutional right though. Big difference, but hard to get across to law geeks.

    If Trump decided no one from France was allowed to enter tomorrow that would be legal also. That is how our government works.

    The only one who has a constitutional right to enter this country is a CITIZEN.

    And frankly I sort give a darn anymore now that the left has outwardly called for violence against even the lower level Trump staffers. If they want a civil war, that is what they are going to get, and I don't think they will like the results.

  • bernard11||

    Where were you when Trump was outwardly calling for violence against demonstrators?

    Cheering him on, I bet.

  • loveconstitution1789||

    Citation?

  • Brett Bellmore||

    At one of his rallies, (At a time when left-wingers were violently blocking access to his rallies, attacking his supporters on the street, and so forth.) he said that if anybody tried to throw something at the stage, deck them.

    No different than the directions a security guard might legitimately be given.

  • JesseAz||

    And equally the same as shooting Scalise, camping outside of various adminsitrators houses, antifa torching campuses. Trump made that comment, and he has to own the equality of violence the left shows against him now.

    Or something like that.

  • santamonica811||

    Jimmy,
    Now that one or two outliers on the left have called for harassing Trump staffers, have specifically said there should be no violence, and now that pretty much everyone else on the left has criticized that sentiment..."

    I really dislike the whole meme of FIFY, but boy does it fit here.

  • JesseAz||

    Outliers... now sitting congressional members are outliers.. You're just sad.

    And you completely ignore the actions that we have seen in place of multiple Trump administrators harassed at their homes... and silence from Pelosi/Schumer you refer to.

  • Brett Bellmore||

    They got the marching orders out there, and then took care of the deniability.

    Now watch if the violence against Republicans takes an uptick. As we saw during the campaign, the Democrats can turn it on, and turn it off. But we won't know which they're doing until they do it.

  • Sarcastr0||

    You guys have been playing the same 'I darkly predict violence from the left any day now' card since at least 2008.

    It's pretty clear at least some of you want the left to be the first movers so you guys can start shooting and still be the good guys.

  • epsilon given||

    Sarcrastr0, where have you been these last few months? We have, among other things, a shooting of Republican Congressmen, several campus riots, and now the harassment of Trump staffers and other Republican officials.

    We have gone well past "the Left will erupt into violence any day now." It's now "How much is the Left going to escalate their violence until the Right finally decides to fight back?"

  • Sarcastr0||

    I could play the same confirmation bias game about Republicans. Or politics in just about any era.

    Your final paragraph more or less completely confirms my ''some guys want to start shooting liberals' statement; you're not helping your case.

  • Brett Bellmore||

    Sarcastro, this isn't confirmation bias, it's just plain old "confirmation". The left is routinely violent.

    We weren't imagining Democrats rioting during Trump's inauguration, the House caucus being shot at, Rand Paul being put in the hospital, Trump supporters being attacked on the street, members of the administration having dead animals tossed on their front porches.

    We're not predicting left wing violence, we're simply refusing to avert our gaze from it.

  • Mark22||

    A green card holder is permitted to enter this country because the LAW currently says so.

    And even that is at the discretion of the executive branch; that is, if the executive branch decides to keep out a green card holder, there is limited recourse.

  • Sarcastr0||

    Are you one of those Proud Boy types? Unironic 'soy boy' is quite rare in the wild.

  • Careless||

    I'm pretty sure he was the one making white nationalist comments a couple of days ago. I don't often hope for people to be banned, but in his case

  • Rev. Arthur L. Kirkland||

    Careful what you wish for, Careless. Without the white nationalists, and other bigots, the current Republican-conservative electoral coalition would capsize.

  • rferris||

    Says the pot to the kettle.
    The good Reverend appears to be a racist.
    Without communists, socialists, racists, America haters, and fascists, the current Democrat coalition would capsize.
    Bigotry, thy name is Democrat.

  • Sarcastr0||

    The good Reverend appears to be a racist.

    I love how bad but enthusiastic some on the right are with the racism card. Like a newborn puppy.

  • epsilon given||

    Yet the Right has a better case. After all, the Democrat Party is the Party of Slavery, the KKK, Jim Crow, forced sterilizations, the aborting of blacks and other undesirables, segregation, and modern urban slums, among other things.

    Indeed, the last representative who had been a member of the KKK was a Democrat Senator, and he served well into the early 2000's, and then retired.

    And Nixon's so-called "Southern Strategy" was to split the Southern vote between the Democrat and another racist.

    And even today, the message Democrats send to minorities is "you can't possibly succeed without us white guys giving you a hand up via Affermative Action" and "you'd better not disagree with us -- then you're no longer a minority".

    Yep, sure, the Republicans are the party of racism. Most of history points the other direction, so it must be true!

  • Sarcastr0||

    Funny, I never said the Republicans are the party of racism. Triggered much?

    Enjoy your historical whattaboutism as White Supremacists flock to your party's leader as we speak.

    Your 'blacks have false consciousness' is some pretty choice repainted Communist rhetoric.

  • Rеv. Arthur I. Kirkland||

    The decision said just that, despite Bull Cow's ramblings on this point. Foreign aliens have no constitutional right to immigrate. Bull Cow is deeply saddened.

  • Malvolio||

    Every sovereign STATE has an absolute right to decide who lives within its boundaries. But, to paraphrase the Sun King, l'état, n'est pas Donald.

  • loveconstitution1789||

    Initial Thoughts on the Supreme Court's Terrible Travel Ban Decision
    Some preliminary comments on a badly flawed ruling.

    Open border people have no constitutional position that stands up to scrutiny.

    Furthermore, the silent majority wants America to be defended from invading immigrants and people who want to attack Americans. Some might even be Muslims of various races as many Muslim religious leaders have declared a state of war with the USA.

    Preventing the exclusion of non-Americans, outside of America, because they are Muslims, is like saying that the USA cannot declare war on Iran because they are Muslim. The USA absolutely can declare war on Iran if need be.

  • Sarcastr0||

    Kennedy more or less said you couldn't target Muslims specifically, so your plan for a War on Foreign Islam sounds a bit farfetched still.

  • loveconstitution1789||

    They're Muslims from Iran. Muslims from Iraq. Muslims from Algeria. Muslims from Somalia. Muslims from Yemen. etc.

    Not all Iranians are enemies of the USA. Not all Muslims from Iran are enemies of the USA. The Constitution gives Congress and the President authority to keep out the ones that are.

  • Mark22||

    Actually, the US Constitution gives Congress the authority to discriminate in immigration matters on pretty much any criteria Congress chooses, and it has done so liberally in the past.

  • retiredfire||

    Maybe we need to begin by declaring that Islam is not a religion, since it is far more than what the Founders accepted as what a religion is - a personal decision on how to worship one's deity.
    Islam is an entire societal construct. One that is inimical to what our Constitutional governance is based upon.
    At its core, it does not believe in a republican form of government. Something guaranteed in the Constitution for this nation.
    If anything, the Constitution should require a denial of entry to any adherent of the ideology of Islam, on the basis of Article 3, Section 3, because of what is written within its tenets.

  • Bob from Ohio||

    Both "terrible" and 'badly flawed" in the title. Excellent.

    Let the hate flow thru you.

  • Sarcastr0||

    Well, I'll admit your joy is a *little* infectious.

  • Smooth Like a Rhapsody||

    He just left out the, "gooood, gooood", part.

  • Rev. Arthur L. Kirkland||

    Guys like Bob are still smarting from the licking they took with respect to treating gays like human beings.
    The goobers never saw that one coming.

  • gimmedatribeye||

    So do you ever actually make an argument or do you just like to virtue-signal about your own self-perceived moral superiority and pontificate about how people should think? What do you care what my feelings about homosexuals are? What do you care if my views hurt someone's feelings? I'm not the authoritarian here. Grow some balls and worry about your own life.

  • retiredfire||

    No one ever said the mentally ill shouldn't be treated like human beings.
    Just that their delusions should not be pandered to, to the detriment of society and their own mental health.
    We should be looking for paths to reduce the large percentage of these people committing suicide, instead of polices that encourage it.

  • MonitorsMost||

    "But the majority refused to do so because they concluded that presidential decisions on immigration policy are subject to only very minimal 'rational basis' review."

    Ilya,
    I'm very sympathetic to your view on what the outcome should be on this case, but you're driving me nuts by not giving a fair evaluation to how previous precedent would be applied. Read note 5 of Sotomayor's dissent. Does "you get one free First Amendment discrimination" sound like a meaningful distinction from Mandel to you?

    The precedent leading up to this case is deeply flawed. The application of said precedent to the case was a reasonable and honest application.

  • Brett Bellmore||

    "Both rulings involved closing judicial eyes to the true purposes of a discriminatory policy largely on the basis of special deference to supposed executive expertise on national security"

    As compared to the obvious judicial expertise in this area?

    Look, the court correctly noted that the executive decision was justified by facially acceptable reasons, and that the policy was actually a good fit to the facially acceptable reasons given, and a bad fit to the purported unacceptable reasons.

    That latter is as significant as the former. What you'd style a "Muslim ban" effects at most 8% of the world's Muslims, while also effecting any non-Muslims in the relevant nations. And, as the Court says, "First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list of covered countries."

    Did those three countries suddenly cease to be majority Muslim?

  • santamonica811||

    This is, I think, the best response to those of us criticizing the original bans. We might agree or disagree, but it's well-argued and a hell of a lot more persuasive than the idiotic "Trump never had any anti-Muslim bias." argument that some have made as a defense.

  • JesseAz||

    Nobody ever made the latter argument. Most of us have been pointing out countries being removed from the list for a year now. Why do you resort to the strawman arguments of your flawed yearly defense of the federal courts in hawaii and california?

  • Brett Bellmore||

    I've certainly never claimed Trump didn't have any anti-Muslim bias. Rather, I've argued that, given the facts concerning world terrorism and the behavior of Muslims when they become more than the tiny fraction of the population they are in America, anti-Muslim bias is rational. Sensible people OUGHT to have anti-Muslim bias.

    I mean, suppose there were a revival of Thugee. Would you really demand that people demonstrate indifference to it in order to be fit for public office?

    That doesn't, however, change the fact that Trump's policy isn't actually a Muslim ban, and rather obviously so. To the point where I have a hard time seeing the claim that it IS a "Muslim ban" as anything but pretextual.

  • rferris||

    What is the difference between anti Muslim bias and concern about Muslim terrorism???

    Where is the clear line between the two??

  • Eddie35||

    The ban doesn't just not cover "all the Muslims in the world," it doesn't cover 92% of them (even more now that the ban has been lifted in three of the original eight countries when they started complying with the religion-neutral criteria). And there are Christian and atheist countries still covered! Even under a no-plenary-power-doctrine-strict-scrutiny review (neither of which is a reasonable argument as to POTUS' powers), this is an easy case. Trump didn't even pick the countries, Obama did!

    Prof. Somin, seriously, you're embarrassing yourself at this point.

  • Brett Bellmore||

    The Supreme court made much of that: It wasn't, in Roberts' opinion, just that the list was a good fit to the administration's proffered justifications.

    It's that it was such a lousy fit to what the ban's opponents claimed motivated it!

  • Ghost of Patrick Henry||

    There needs to be some recognition that Islam is both a religion AND a political philosophy. If the Nazis had only thought to declare themselves a religion, then FDR could have been enjoined from excluding them....... and by ANY District Court judge.

    This is the logic of the Conspiracy these days. How far the mighty have fallen.

  • Sarcastr0||

    I'm pretty sure that the Conspiracy I started reading in 2004 wouldn't have been for targeting Islam as not a religion either.

  • ||

    I think a pretty good case could be made that the precepts of Islam, combined with the contents of the Quran and hadith, are completely at odds with US notions of religious and political freedom. Moreover, the goal of Islam is the universal imposition of shariah law.

    The Pew Charitable Trusts have done Muslim attitude surveys in the middle east. The results, from our point of view aren't encouraging.

    I am happy to grant that a significant majority of Muslims view their religion in solely communitarian terms, and no more desire to impose Islam on others than do Lutherans. However, taking the Mohammed cartoons as just one example, a non-trivial number of Muslims do, indeed, take a supremacist view of Islam, to the point where they feel entitled to force Islamic strictures on non-believers.

    Does the 1A really require we open the doors to a religion that, in its own lights, would trash the 1A at the first opportunity?

    There is probably an arguable case that there is, except for including a Supreme Being in the mix, there is little to separate Islam as an ideology from communism. If excluding avowed communists from the US was OK, why not fundamentalist Muslims?

  • Careless||

    Does the 1A really require we open the doors to a religion that, in its own lights, would trash the 1A at the first opportunity?

    In terms of allowing them to enter the country, I'm unsure. In terms of allowing them to speak such ideas once in the country, absolutely. Heck, the Democrats had people campaigning on repealing the First Amendment in 2016. You can do that.

  • ||

    In terms of allowing them to speak such ideas ...

    Of course.

  • M.L.||

    The troubling thing is the Islamic texts. There are encouraging signs of moderation in the culture. But hard to envision the future as Islam's communitarian, patriarchal culture collides with the Western individualist, rule of law culture and the underlying Christian view of inerrant God-breathed scripture.

  • Sarcastr0||

    You don't judge a religion by it's texts. Or else Jews would be terrifying.

    And your broad brush about Islam's culture goes way to far anyway.

    And, finally, we let people argue against Western Civilization here in Western Civilization. Because we have faith our ideals will win out in the marketplace.

    If you don't have that faith, the only solution is to become authoritarian.

  • M.L.||

    None of this responsive. Religious texts are relevant except to the extent they're not, and my comment was nuanced. Cultures have general characteristics, these are called generalizations. Yes, we like freedom of speech, relevance?

  • Sarcastr0||

    Islam is not one culture. Nowhere near. It varies widely across nations and sects.

    Saying the equivalent of 'and some, I'm sure are good people' isn't nuance.

  • ||

    So far as I know, every majority Muslim country penalizes apostasy and criminalizes homosexuality. Virulent anti-Judaism is prevalent. Those Pew surveys I referenced above show attitudes we would view as rank bigotry are widespread. Somewhere between nearly all and all Muslim majority countries have serious sectarian conflicts and are at least moderately antagonistic towards religious freedom.

    There might be a common thread.

  • Sarcastr0||

    The common thread is your own confirmation bias.

    Check into Bosnia and Herzegovina, as well as Indonesia.

  • ||

    I was just in Bosnia and Herzegovina a couple weeks ago. Beautiful place.

    Speaking of confirmation bias, it is rare to disprove the rule based upon one very small exception.

  • Brett Bellmore||

    There you go again, confusing "confirmation bias" and "confirmation".

  • ||

    "Check into Bosnia and Herzegovina, as well as Indonesia."

    You might want to reconsider Indonesia. Google [indonesia religious intolerance].

  • TwelveInchPianist||

    "Does the 1A really require we open the doors to a religion that, in its own lights, would trash the 1A at the first opportunity?"

    The old, "must we tolerate the intolerant" argument, eh? Yes, we must.

  • ||

    We must tolerate intolerant US citizens. Must the US allow intolerant immigrants?

  • retiredfire||

    The simple fact that the tenets of Islam extend consequences, for violation of them, beyond excommunication, and into the realm of actual capital punishment, should be enough to separate it from what is normally considered a religion.
    Until Islam has its own "reformation" and removes such tenets, it should not be granted the protections our Bill of Rights provides to religions.

  • Ramer||

    Courts have long shown near-complete deference to the President on national security issues. Cases like those involving the "state secrets" doctrine, along with the entire FISA process, sometime appear to reflect a process of non-reviewability. Had the 9th Circuit decision stood, it would have been revolutionary. One can argue whether such broad deference is good policy, but anyone arguing that this decision is somehow revolutionary is either disingenuous or — more likely — suffering for Trump Derangement Syndrome. What is shocking is to see 4 out of 9 Justices have that infliction.

    Professor Somin, can you justify your position without assuming you "know" what President Trump really believes, despite his statements to the contrary? Given that the Ban does not in fact ban Muslim immigration and that Obama and other administrations have targeted these same countries, you cannot point the countries selected.
    Should Judges really be overturning facially neutral government action that have neutral effects based on the assumption the Judge can read the mind of a politician?

  • Al Sappwood||

    Hope it stings, Ilya.

  • Rеv. Arthur I. Kirkland||

    Bull Cow is REEEEEEEEEEEEing. I love it. His tears of unfathomable sadness taste so sweet. The decision today shows that Bull Cow has absolutely no credibility on issues of Constitutional law. For months he's been crowing about how the ban would fall. Bwwahahahahahahhahahahahhahahahahh!

    Bull Cow lost.

  • Rev. Arthur L. Kirkland||

    These are your peeps, Prof. Volokh. A carefully cultivated band.

    How much conservative bigotry, authoritarianism, and stale thinking will it take to persuade Prof. Somin that he should stop shacking up with right-wingers and find some genuine libertarians?

  • Rеv. Arthur I. Kirkland||

    You don't mean that, communist. You just want Bull Cow to fully acknowledge his globalist and Communist sympathies. You aren't a libertarian either, so you can join him in that cesspool.

  • Brett Bellmore||

    Art, try to get your MPD under control, or at least persuade your various personalities to use more easily distinguishable names.

  • rferris||

    What a troll you are. Are you actually a
    "Reverend" or is that part of your hater image

    The left is the side that is big on big government and authoritarian thinking......think Hitler,Stalin,Mao,Pol Pot, Mussolini, and ALL the tyrants of the modern age. ALL leftists are ALL anti-GOD. These are the type of results you will get when you follow the left.

    Why would a real Reverend support the anti-GOD party?? Sweet lies steal the soul of otherwise good men and lead them to support tyranny in the hopes that doing bad for a good cause will lead to positive results. It never does, but some folks are always going to be the foot soldiers of the devil.

    When you support the party that says "our ends justify our means" you are on the side of evil.

  • Sarcastr0||

    Your post's enthusiasm in redefining all bad things as liberal is a bit Trotskyist.

  • Careless||

    This is especially true in a situation where evidence strongly indicates that the official national security rationales for the policy are just pretexts for the real purpose: carrying out Trump's bigoted "Muslim ban" promise.

    Given that the policy doesn't do that (doesn't carry out the "Muslim Ban" promise), that can't be the case.

  • Daniel Piedra||

    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

  • loveconstitution1789||

    Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    San Diego cannot pick Islam as a 'good' religion. History has counter-points to the claim that Islam is all good. Education texts should reflect what Muslim bombers do.

    Many Muslims have a jihad war rage against America and Americans, yet for some reason the USA cannot declare war against those that have declared war against the USA.

  • Sarcastr0||

    Declaring war against 'Many Muslims' would be a pretty tricky proposition, no?

  • TwelveInchPianist||

    The travel ban is terrible policy.

    But ISTM it's terribly difficult to infer a discriminatory pretext when the original illicit motive is a proxy for legitimate harm. Trump wanted to ban Muslims because he felt that a large number of them were terrorists. But he chose not to explicitly target Muslims.

    In such a case, I'm not sure how you distinguish a sneaky way to target Muslims from a non-discriminatory way to target terrorists.

  • ||

    How is it terrible policy?

  • loveconstitution1789||

    Many Muslim people call themselves Muslims as if its a race that defies all current national boundaries.

    We used to designate people by nationalities (Iraqis) but now some militant Muslims want to label themselves religiously rather than by nationality (Muslim fighters).

    What do you call Muslim people from various countries that want to kill Americans and destroy America?

  • TwelveInchPianist||

    "How is it terrible policy?"

    Because it reduces the number of pretty girls with American flag hijabs in the US.

  • TwelveInchPianist||

    Oops, reply button error.

  • Brett Bellmore||

    American flag bikinis, or Daisy dukes, I can see. But hijabs? I'll pass; How do you tell they're pretty?

  • Sarcastr0||

    Hijabs aren't burkahs.

  • Sebastian Cremmington||

    They are Muslims and to talk down to them is racist. Generally we take an ideology at face value and then make a value judgment about whether or not it is antithetical to our values. The notion we should respect a foreign ideology because it is a "religion" is absurd and quite frankly dangerous.

  • CrispyBacon||

    "Sadly, the ultradeferential approach adopted by the majority can just as easily rationalize virtually any discriminatory exclusion of immigrants or refugees."

    This isn't about rationalization by the judiciary but by the co-equal branches of government (see Kennedy's concurrence). The Court can't and shouldn't be expected to save us from all perceived evils. In their dissent, Breyer and Kagan staked out a pragmatic approach: if thousands of (Muslim) people were exempted, as allowed by the terms of the ban, then the ban wouldn't be unlawful. I think you agree with me that's not a sensible exercise. While I think it laudable to avoid the question of intent (which we can assume Kennedy would care about here if not for the deferential approach), either there is a valid exercise of authority or not. The majority got it right.

  • Smooth Like a Rhapsody||

    Cue the news story about a leftist restauranteur refusing service to CJ Roberts.
    Cue, also, the Time mag cover with CJ Roberts towering and glowering over a crying little girl in a hijab.

  • Sarcastr0||

    Close! Now, think of why this won't happen to Roberts and did happen to Trump.

  • Sebastian Cremmington||

    "[t]he face of terror is not the true faith of Islam," George W Bush

    The world needs more of this—wealthy privileged white Americans telling brown people how to practice their religion!! How f'ing awful...

  • retiredfire||

    He wasn't telling Muslims anything.
    He was trying to tell Americans something that wasn't true.

  • damikesc||

    there is no good justification for exempting immigration policy from normal standards of judicial review.

    Ilya, you seem to confuse EQUAL branches for SUBORDINATE branches.

    The Executive does not have to run by his usage of quite clear Constitutional powers by judges. Judges are woefully incapable of dealing with immigration policy in any manner whatsoever,

    The Courts do not have final say on every single issue out there. Foreign policy is a big one where they should have virtually none.

    Sadly, the ultradeferential approach adopted by the majority can just as easily rationalize virtually any discriminatory exclusion of immigrants or refugees.
  • RPGuy16||

    Somin is an open borders extremist, which is fine he can have his opinion just like anybody else. The problem is he lets his policy preference of what the law should be overwhelm his supposedly objective analysis of what the law is.

    It's possible that the decision is wrong as a matter of policy but correct as a matter of law, but I simply cannot trust Somin for an objective analysis. He destroys his credibility with his extremism.

  • Azathoth!!||

    Tears!

    Oceans of tears!

    Hahahahahahaha

  • John||

    The fact is that this is a facially neutral law that has been applied in a uniform and fair way. There is no getting around that. Somin is arguing that despite this, his reading of the President's "discriminatory intentions" should invalidate an otherwise valid exercise of Presidential power. That is absurd and is a standard that Somin would never apply under any other circumstances. Somin would have courts try and look into the hearts of legislators and executive to determine if their motives were pure in order to invalidate facially valid exercise of government authority. That would be judicial tyranny at its worst.

    You cannot overstate how dishonest and wrong Somin is on this subject. He should know better than this and reveals himself to be a complete hack.

  • retiredfire||

    I wonder how Somin would interpret the policies of employers and universities, after being told that they couldn't use overt quotas, to "diversify" their student bodies or employee pools, if they adopt policies that accomplish the same goals, but by not-openly percentage based criteria.
    Because the overwhelming result of such discriminatory intent is the same, but seemingly acceptable to the "legal" profession.

  • TWW||

    Professor:

    Trying to apply the First Amendment to Islam is a very problematic proposition. Islam, is more than just a religious canon, it is a comprehensive political doctrine and a social philosophy that, together, control the entirety of Muslim life.

    As for discrimination in the secular sense, when they stop trying to kill me, I will stop discriminating against them.

  • Atanu Dey||

    "As for discrimination in the secular sense, when they stop trying to kill me, I will stop discriminating against them."

    TWW, very nicely put. Thanks.

  • Martinned||

    a comprehensive political doctrine and a social philosophy that, together, control the entirety of Muslim life.

    Amish say hi!

  • Martinned||

    (It occurred to me that I might need to explain this further. "Comprehensive political doctrines and social philosophies" are protected by the first amendment just like religions are.)

  • retiredfire||

    The Amish don't have tenets that say non-believers, apostates, and those, who violate its laws, should be killed.
    Having punishment that didn't go beyond shunning, or excommunication, would go a long way to making normal people think of Islam as just another religion.

  • Sarcastr0||

    The increasing calls for outright bans on the religion of Islam on this site is something of a 'take off the mask now that it's safe' moment.

  • CrispyBacon||

    Did those commentators previously wear masks?

  • Sarcastr0||

    There sure was a time of 'there is no ban on Muslims, that's silly!'

  • CrispyBacon||

    As I know you are aware, these commentators were saying the same thing back then too. It is easy and often enjoyable to paint one side of a debate as an undifferentiated mass that can be defined by the worst arguments on that side - but that's not the reality of it. The same people who said it's not a Muslim ban are still here and happy to say the same.

    After the years of liberal talk about civility and "when they go low we go high," we have witnessed numerous incidents of violence, property destruction, and disgusting rhetoric from liberals. Did the mask fall off there? Absolutely. Not that I think most liberals support those acts but liberals never really believed in civility. There is no moral leader on the liberal side. You'd think that this would be a time for Barack "Civility" Obama to show moral leadership on his side. Nope.

    The 2020 election may very well look like the 2004 election and Democrats need to start accepting responsibility for what they have been doing to our country rather than trying to win at all costs.

  • eyesay||

    Ilya Somin wrote, "But the majority's statement that 'Korematsu has nothing to do with this case' is much harder to credit." It took over 70 years for the the Supreme Court to explicitly overturn Korematsu. Let us hope that long before 70 years from now, the Supreme Court explicitly overturns Trump v. Hawaii and repudiates the preposterous statement that Korematsu has nothing to do with Trump v. Hawaii. Actually, let us hope that no future president of the United States acts in such a discriminatory manner that would give the Supreme Court that opportunity.

  • retiredfire||

    Korematsu dealt with people, already in the country, legally.
    What the Travel ban dealt with was people, not here, at all.
    One has nothing to do with the other.

  • dwshelf||

    Sadly, the ultradeferential approach adopted by the majority can just as easily rationalize virtually any discriminatory exclusion of immigrants or refugees.

    Most thinking people believe that we need discriminatory exclusion of immigrants and refugees.

    There are some kinds we would like to attract, and there are other kinds we would like to exclude. That's pure discrimination.

    Further, the political process is where the nature of such discrimination should be decided; for absolute certain,we don't want to the 1st Amendment to be some kind of suicide pact.

  • Martinned||

    I don't think "thinking" means what you think it means...

  • retiredfire||

    You may not.
    That's why it doesn't seem that you fit into that category.

  • EZepp||

    Maybe more time needs to be spent contemplating "initial thoughts".

    In this area, the Constitution gives the President broad authority to make such an order. Whether it is a good order or not is purely an opinion. Fortunately, a majority of Justices understood the difference between law and opinion. Sadly, but as to be expected, four clearly didn't.

    If people disagree with his order, its rationale, its effectiveness, etc, the Constitution already provides remedies. They exist in the court of public opinion through elections, and in the "court" of Congress through impeachment. It does not belong in the judiciary.

    Frankly, the latter remedy can also be used to deal with Justices who consistently and steadfastly misinterpret law and the Constitution to fit their agenda.

  • Martinned||

    In this area, the Constitution gives the President broad authority to make such an order. Whether it is a good order or not is purely an opinion.

    Does it? Where does it say that the Bill of Rights does not apply to immigration? That may well be the right answer, but it's sure as sh*t not spelled out in the text of the Constitution.

  • retiredfire||

    Common sense plays a role and it doesn't need to be explicitly stated that the Constitution, and the Bill of Rights, doesn't apply to everyone in the world.
    A great many believe that it has been extended too far to apply to those who illegally enter the country. To extend it to the entire planet defies common sense, something far too uncommon among the left.

  • eyesay||

    dwshelf wrote, "Most thinking people believe that we need discriminatory exclusion of immigrants and refugees." On the contrary, thinking people reject discrimination, in the sense of making distinctions against individuals based on the group, class, or category to which the person is perceived to belong. Yes, it's fine to say that you have to be 16 to get a driver's license or 35 to be POTUS, or that you need to pass tests before you can practice law. But it's not OK to say that because Elbonians are noted for causing a lot of traffic accidents, we won't issue driver's licenses to Elbonians, and it's not OK to campaign for president whipping up hostility to people of the Oxterian faith, and then as president ban Elbonians from entering the United States when everybody knows that most Elbonians are of the Oxterian faith and it's patently obvious that the purpose of the ban is to keep a discriminatory promise and not to make America safe. We

  • ||

    Absent an ability to make individual determinations of people from a foreign country, which we generally will not be able to, it is okay to do that. We have no better way.

  • eyesay||

    This is begging the question in the literal sense, i.e. you assume the conclusion in order to get the conclusion. The United States is a fantastically wealthy nation with abundant resources. We have the ability to review visa applications and asylum requests individually if we choose to. We have to do this anyway for individuals not from Trump's list of countries, so how much harder could it be if Trump's list were reduced to zero? And since Trump's executive order has a waiver provision, we have to do this anyway for individuals from Trump's list of countries who apply for a waiver. As Breyer's dissent noted, the executive branch is doing a very poor job of processing waiver applications, for example denying a visa to an 8-year-old girl needing a medical procedure unavailable in Yemen. But the fact that the Trump administration hasn't been got the waiver application process running properly doesn't mean it's impossible, it means only that they are incompetent. You are just plain wrong, Patriot. There is a better way.

  • ||

    Can you 100% guarantee that no one from the banned countries will a) commit a terrorist attack, b) commit a violent crime against Americans, c) use welfare or other social programs?

    If not, then the rule is justified.

    Period.

  • Sarcastr0||

    Can you 100% guarantee...

    Not how anyone makes policy, or law.

  • Sarcastr0||

    Period

    Clearly.

  • AD-RtR/OS!||

    If you don't like the law that grants the President such power, and SCOTUS' upholding of that law, have the Congress change the law......and quit bitching about a law that you ignored for decades.

  • Amir Najam Sethit||

    Trump Based policies related to immigration are baseless.

  • Michael Cook||

    POTUS until early January 2025 has a fresh buzzword to replace the clunky legalese phrase "any aliens or class of aliens."

    INVADERS!

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