The Supreme Court Gets the ‘Travel Ban’ Case Right

National Review Online

Tuesday, June 26, 2018

In sustaining President Trump’s so-called travel ban, the Supreme Court has vindicated “the authority of the Presidency itself,” not the sometimes overheated campaign rhetoric of the incumbent president, as Chief Justice John Roberts wrote today for the narrow majority.

On the merits, Trump v. Hawaii was a straightforward case. The proclamation issued by the president in September 2017 (the last refinement of earlier iterations) was not actually a “ban” on travel. It placed restrictions on the nationals of eight countries that present extraordinary challenges for visa vetting because their governments are either dysfunctional or hostile to the United States — Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia (the last added when Iraq was removed from the original list).

Aliens have no constitutional right to enter the United States and, as the Court’s majority observed, the admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” In that connection, Congress has enacted section 1182(f) of federal immigration law (Title 8 of the U.S. Code), which vests broad authority in the president to suspend the entry of classes of aliens — which includes setting conditions and time-frames on such suspensions — if the president unilaterally concludes that their admission “would be detrimental to the interests of the United States.”

Quite apart from the fact that Trump was thus acting at the apex of his authority (in an area of core presidential responsibility with sweeping statutory support), the travel restrictions were imposed only after an exhaustive process in which executive agencies responsible for visa-issuance decisions evaluated every country in the world for compliance with U.S. needs for information-sharing and risk-assessment. The majority noted that the twelve-page proclamation was more detailed with factual findings than any ever issued under the statute. The restrictions imposed were not based on nationality per se, much less religion, but on inadequacies in addressing risks. There was, in addition, a proviso that the “conditional restrictions” would remain in force only as long as the cited countries failed to address the problems identified. And, indeed, the chief justice pointed out that three countries — Iraq, Sudan, and Chad — have been removed from the list.

Under long-standing precedent, the judiciary may not second-guess the denial of a visa, even if an American citizen claims derivative harm from it, if the executive branch offers a “facially legitimate and bona fide” reason. This, coupled with the manifest care taken by the administration to tailor the travel restrictions narrowly, should have been cause for the courts to stay their hand. The lower courts did not do so, however, because of Donald Trump’s purple prose on the hustings and in the early days of his presidency, in which sensible concerns about border security and jihadist terrorism were framed in terms that could be construed as anti-immigrant and anti-Muslim. Clearly, as the barely controlled rage of Justice Sonia Sotomayor’s dissent attests, that is why what should have been an easy decision turned into a 5–4 cliffhanger.

As the majority correctly countered, though, the judiciary’s role in a democratic society is not to police political bombast or substitute its judgment for that of the voters and the political branches. There is no special jurisprudence of Trump, no judicially legislated exemption that denies this duly elected president the legitimate constitutional and statutory powers of his office. Federal judges do not have to like the president, but their allegiance is supposed to be to the law, not to the Resistance.

Moreover, the facially neutral proclamation refutes the claims of anti-Muslim and anti-immigrant bias. The travel restrictions are not limited to Muslim-majority countries; they do not cover the vast majority or the world’s Muslims; the Muslim-majority countries that are cited were previously designated as problematic by Congress and prior administrations; and, as already noted, Muslim-majority countries have been removed from the list once the Trump administration judged them to have improved their compliance. Further, as the majority found, Congress did not intend, by barring discrimination based on nationality in the issuance of visas, to restrain the president’s power to limit the universe of admissible aliens. This claim is rebutted by both historical practice and common sense — as the Court explained, it would absurdly prevent the president from suspending entry from countries suffering epidemics, sponsoring terrorists, or on the brink of war with the United States.

Of course, it goes without saying that the president’s shoot-from-the-lip propensities make his tough job all the tougher. While the long impasse over clearly lawful travel restrictions was largely caused by judicial imperiousness, the president can’t seem to help giving his opposition plenty of ammunition. That translates into opportunities for his opponents to litigate to stall his policies. The Supreme Court got this one right, but only after a festival of idiocy lower down.