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November 17th, 2018

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In approving Trump's 'Travel Ban', High Court May Have Just Set a Bad Precedent

Heather Mac Donald

By Heather Mac Donald City Journal

Published July 9,2018

In approving Trump's 'Travel Ban', High Court May Have Just Set a Bad Precedent

A slim five-justice Supreme Court majority upheld President Donald Trump's suspension of immigrant visas from eight security-compromised countries, overturning a lower court injunction against it.

In dissent, Justice Sonia Sotomayor alleged that the suspension of travel from those countries constituted a "discriminatory policy," intended to exclude Muslims from the United States. Sotomayor never mentions the fact that only 8 percent of the global Muslim population is affected by the 2017 travel suspension; if excluding all Muslims was the aim of that policy, its drafters failed miserably.

Though lacking a majority, Sotomayor's dissent, joined by Justice Ruth Bader Ginsburg, nevertheless augurs the spread of victim ideology and its legal counterpart, disparate-impact analysis, beyond domestic policy to international affairs.

Trump v. Hawaii was the third legal challenge to the president's efforts to limit travel from terror-sponsoring countries. The suit took aim at a September 2017 presidential proclamation issued after a worldwide security review by multiple federal agencies that evaluated the integrity of other countries' travel documents, their willingness to share their nationals' criminal history and terror connections, and their internal terrorist networks. Thirty-one countries failed one or more of the three security criteria. For the next 50 days, the Department of Homeland Security worked with those countries to improve their information-sharing practices and their document integrity. All but eight of the original 31 passed the subsequent security stress test, leaving Iran, North Korea, Chad, Venezuela, Syria, Iraq, Libya, and Yemen still security-deficient. Iraq was then removed from the list of eight countries because of its close cooperative relationship with the U.S., and Somalia was added because of its significant terrorist presence. Each of the six Muslim-majority countries had already been identified by Congress or previous presidents as posing elevated terrorism risks. The Department of Homeland Security recommended various restrictions on immigrant and non-immigrant visas from those eight countries, with exceptions for lawful permanent residents of the U.S. (i.e., green-card holders), successful asylum claimants, individuals showing particular hardship from the visa restriction, and students. The DHS was tasked with reviewing the remaining eight country's security procedures every 180 days to see if any had improved sufficiently to be removed from the list. (This was not a window-dressing measure: Chad was removed after the first review period.)

President Trump signed the DHS-recommended Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats on September 24, 2017. The state of Hawaii, the Muslim Association of Hawaii, and three Americans with relatives affected by the entry suspension promptly sued him. Their lawsuit carefully excluded North Korea and Venezuela from challenge, so as to argue that the proclamation was motivated by anti-Muslim animus, rather than national security concerns. The District Court in Hawaii issued a nationwide injunction barring enforcement of the proclamation, and the Ninth Circuit affirmed, on the ground that the proclamation exceeded the president's authority under the Immigration and Nationality Act. The Ninth Circuit did not reach the plaintiffs' constitutional religious-discrimination argument, but the plaintiffs raised it again at the Supreme Court, and both the majority opinion and Sotomayor's dissent addressed it.

The statutory challenges to the 2017 proclamation are readily disposed of. The Immigration and Nationality Act explicitly grants the authority that Trump exercised to exclude large categories of aliens from entry. Section 1182(f) of the INA provides: "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." As Chief Justice John Roberts wrote in his majority opinion, section 1182(f) "exudes deference" to the president's national security powers.

The plaintiffs tried to introduce limitations found nowhere in the text. The aliens excluded under the act must share something more specific than nationality, they argued; the suspension must be time-limited and accompanied by an exhaustive justification. In fact, the 12-page rationale for the Trump proclamation was more detailed than any previous order issued under section 1182(f), and every president since the INA was enacted in 1952 has exercised his power under the section to exclude aliens. None of the 43 suspension orders prior to Trump's specified an end date. President Bill Clinton took one sentence to explain why he was suspending Sudanese armed forces and government officials. Ronald Reagan managed to squeeze out five sentences to justify the blockade of undocumented aliens entering by sea. Reagan also prohibited almost all Cuban nationals. Jimmy Carter used section 1182(f) against Iranian nationals. If the act allows the president to suspend the entry of "all aliens," it is nonsensical to claim that he cannot suspend the entry of aliens from particular countries posing heightened security risks. Another section of the act, 1152(a), does prohibit consular officials or border inspectors from denying entry to individual aliens based on their nationality. But that restriction does not apply to a presidential determination of large-scale security risks, and has never been held to do so. If the plaintiffs were correct that a president may not suspend the entry of citizens from particular countries, then traditional wartime restrictions on alien entry would be out of bounds, as would be restrictions in response to epidemics in foreign countries, Roberts correctly observed.

Sotomayor's dissent did not even mention section 1182(f), with its unbounded grant of exclusionary authority, but instead went straight for the constitutional argument: that Trump's proclamation was motivated by "anti-Muslim animus," and thus violated the First Amendment's command that government officials act neutrally toward various religions. Sotomayor dismissed as insignificant the removal of Chad and Iraq from the original list of eight restricted countries. If one's goal is keeping out Muslims, however, Iraq, as one of the largest Muslim-majority countries in its region, would seem to be a necessary component of any "Muslim ban." Sotomayor ignored completely the fact that the proclamation allows 92 percent of the world's Muslims to apply for and receive visas. She also did not deign to notice the DHS's efforts to pare down the first-cut list of 31 security-deficient countries, many of them Muslim-majority. All that mattered, in her view, were Trump's campaign statements and tweets regarding his plans to restrict Muslim immigration as a terror-protective measure.

The most sweeping of those statements occurred on December 7, 2015, posted to Trump's campaign website: "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." Invoking "Pew Research," the campaign statement alleged: "[T]here is great hatred towards Americans by large segments of the Muslim population. . . . Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of the horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect of human life." That statement remained on the website until May 2017. Thereafter, Trump's pronouncements became somewhat more nuanced. In June 2016, he advocated a suspension of immigration from countries "where there's a proven history of terrorism." He described the proposal as rooted in the need to stop "importing radical Islamic terrorism to the West through a failed immigration system." A month before the election, he said that his original plan had "morphed into a[n] extreme vetting from certain areas of the world."

Yet the trademark Trumpian candor—refreshing or horrifying, depending on one's political point of view—also continued. In July 2016, he explained that he had started using different terminology to describe the travel policy because "[p]eople were so upset when [he] used the word Muslim." After the election, he publicly deplored the fact that the second of his travel orders had been "watered down" and called for a "much tougher version." It should have been "far larger, tougher, and more specific," he said, but "stupidly that would not be politically correct." The second executive order had been tailored at the behest of "the lawyers," he announced at a rally. He would have preferred to "go all the way," he said, noting that it is "very hard" for Muslims to assimilate into Western culture. He tweeted in June 2017: "People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN! . . . That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!"

Both the majority and the dissent's constitutional analyses raise several threshold questions. The first thing to be noted is that one person's "animus" is another's statement of fact. Under our culture's spreading concept of hate speech, however, truth is no defense if one has said something negative about a favored victim group. Trump's language is never nuanced. But allowing some wiggle room for hyperbole, is it animus or simply accurate to say that some significant portion of the Muslim population worldwide hates America, and that that hatred has resulted in terror attacks here and abroad? Today's reflexive invocation of bigotry in the face of any challenge to politically correct taboos always circumvents the need to ask: But is it true? Roberts, no less than Sotomayor, accepts without challenge the plaintiffs' charge that Trump's statements, in Roberts' phrasing, "strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition." Roberts contrasts Trump's words with George Washington's statement to the Hebrew Congregation of Newport, Rhode Island, in 1790: "[H]appily the Government of the United States . . . gives to bigotry no sanction [and] requires only that they who live under its protection should demean themselves as good citizens." Roberts overlooks the necessary distinction: Washington was addressing U.S. citizens on U.S. soil, whereas Trump was talking about radical Muslims abroad. Roberts, no less than Sotomayor, implicitly accepts the plaintiffs' equation of Trump's unbuttoned but arguably accurate pronouncements with discrimination and bigotry. Yet the issue before the court, Roberts says, is "not whether to denounce [Trump's] statements;" it is whether the proclamation is independently justified under presidential authority.

The second thing to be noted about both the majority and dissent's constitutional treatments is that neither specifies the precise constitutional rights being violated here. Roberts comes closest to the matter in his analysis of whether the plaintiffs have standing to be in court at all. A plaintiff can bring a case before a federal court only if he has suffered a particularized injury from the conduct being litigated. Roberts declines to adjudicate the plaintiffs' charge that Trump's words have inflicted a "spiritual and dignitary" injury and finds instead that the three individual plaintiffs have been sufficiently harmed by their foreign relatives' inability to enter the country. But now that they are in court, what is the substantive First Amendment claim that they are raising? Roberts never answers that question, nor does Sotomayor. Roberts concedes in passing that foreign nationals have no constitutional right to entry. One might add that foreign nationals abroad should have no constitutional rights, period. Otherwise, war would become unconstitutional and we would have obligated ourselves to extend our constitutional protections to the world.

Yet if any immigration action toward foreign nationals abroad provides standing to U.S. residents who can claim that they are harmed by that action, we have in effect constitutionalized most entry decisions, since many will have an impact on a U.S. resident. And indeed, a 1972 case found that Stanford University professors could challenge a decision to exclude a self-described "revolutionary Marxist" from Belgium whom they had invited to speak. The professors' First Amendment free-speech right to receive information was implicated, the Court found. Here, the plaintiffs are not raising a First Amendment free-speech claim, but rather a First Amendment Establishment claim, alleging that the entry suspension violates the First Amendment rule that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This establishment claim is dubious. The typical establishment case alleges that a particular religion has been favored, but that is not the case here. Nor is it the case that the proclamation interferes with the American relatives' free exercise of religion. The foreigners who are excluded have (or should have) no free exercise rights at all.

Roberts passes over these problems with a few non sequiturs. His solution to this potential bootstrapping of constitutional rights into immigration policy is a deferential standard of review. As long as the government action is plausibly related to a valid government aim, the Court will uphold it, he says. (This deferential standard of review is known as the "rational basis" test.) The third proclamation meets that standard, Roberts finds: it aims to prevent inadequately vetted foreign nationals from entering the country and to induce other nations to improve their vetting practices. It says nothing about religion. Had any other president issued the proclamation, it would clearly be lawful, he says. That fact makes further inquiry into possible unconstitutional motives, such as religious hostility, unnecessary.

But with the precedent reaffirmed that constitutional review, however narrow, is appropriate for admission decisions, it is not surprising that Sotomayor rejects Roberts' resolution and places determinative significance on Trump's allegedly anti-Muslim statements. She finds the proclamation's waivers and exceptions proof that national security is not the real agenda; if it were, she asks, why are we allowing in so many people from the covered countries? Of course the admission of those waiver recipients also undercuts the claim that the policy's real agenda is to exclude Muslims, but never mind.


Sotomayor's opinion reflects the blinding effects of victim ideology. She claims that the travel pause is "divorced from any factual context" that could possibly be connected to legitimate state interests—as if Islamic terrorism does not exist. She asserts that Trump translated his campaign promise of a "total and complete shutdown of Muslims" entering the country into "concrete policy." But there is no such "total and complete shutdown"; the "concrete policy" affects just 8 percent of the world's Muslims. And, most significantly, she deploys the Left's most powerful weapon for delegitimizing government action: disparate-impact analysis. Roberts is wrong, she says, that the proclamation is silent about religion: it "overwhelmingly targets Muslim-majority nations." But any policy whose factual predicates are terror networks and compromised security systems will fall on Muslim countries disproportionately. The only way to avoid such disparate impact is not to target terrorism whatsoever. The identical thinking now distorts domestic criminal justice policy. Any policing strategy that seeks to decrease drive-by shootings and armed robberies will result in more stops and arrests in minority neighborhoods, because that is where the overwhelming bulk of street crime occurs. The only way to avoid having a disparate law-enforcement impact in minority neighborhoods is to stop enforcing the law.

The fundamental myth of today's Left is that there are no differences in group behavior that produce different social outcomes; every economic and social disparity is the result of discrimination. Any fact that contradicts that myth of equal behavior—such as the dominance of Islamic radicals among today's terrorists—must be denied or, as in Sotomayor's opinion, ignored. And any policy that addresses antisocial behavior that happens not to be equally distributed among different groups can only result from bias, rather than a legitimate policy goal like public safety. Roberts writes in his majority opinion that the dissent can discern no legitimate state interest in the visa suspension only because Sotomayor refuses to apply a rational-basis standard of review. Actually, Sotomayor finds no legitimate state interest because the Left denies any problems among its favored victim groups that would explain why a policy has a disparate impact on them.

Sotomayor's victimology leads her to an analogy that has been overworked of late during the alleged "crisis" of child separations on the Southern border: the internment of Japanese-Americans during World War II. The majority decision in Trump v. Hawaii is as great a moral and constitutional abomination as the Court's 1944 decision in Korematsu v. U.S., upholding that internment, she concludes. The stark differences between the two policies—the one, the forced relocation of U.S. citizens on the basis of race, the other, a neutral policy limiting the admission of certain foreign nationals from high-security-risk countries—are invisible to someone primed to see bias in American government actions. (Roberts takes the opportunity in Trump v. Hawaii to overrule Korematsu, which has heretofore remained on the books.) As overwrought as Sotomayor's Korematsu analogy is, however, it is of a piece with the extrajudicial reactions to Trump v. Hawaii among the open-borders lobby. The commissioner of immigrant affairs for the New York City mayor's office called the ruling an "institutionalization of Islamophobia and racism." The Democratic National Committee declared: "this is part of a larger assault by President Trump and congressional Republicans on our nation's values of inclusion and opportunity for all people." (Those to whom we owe the obligation of "inclusion and opportunity" apparently include foreigners residing abroad.) The litigation director at the National Immigrant Justice Center announced, "it is a shameful day to be an American."

For now, Trump v. Hawaii rightly reaffirms presidential authority to exclude foreign nationals to protect national security. But by granting standing to challenge immigration policies to U.S. relatives of foreign nationals, the Court has potentially opened up a vast arena of foreign policy to litigation. Perhaps the low rational-basis test, if properly applied, will quickly dispose of those challenges. But the pressure to constitutionalize foreign policy will continue. Ironically, it is retiring Justice Anthony Kennedy who provides, in a concurrence in Trump v. Hawaii, the clearest glimpse of where this "lawfare" trend may be heading. Though Kennedy concedes that there may be a sphere of executive action that is exempt from judicial scrutiny, he insists that government officials adhere to constitutional mandates "even in the sphere of foreign affairs." An "anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts," he writes. In fact, freedom will "extend outward" when citizens of corrupt, despotic regimes root out corruption and despotism. Whether the U.S. government does or does not implement a "travel ban," even a "Muslim travel ban," has nothing to do with that extraterritorial matter, nor is it the responsibility of the U.S. government to extend freedom outward. Kennedy's view of a constitutionally constrained, moralistic foreign policy, combined with the Left's victimology, could jeopardize the nation's ability to protect its interests. With virulent attacks on Trump's efforts to restore the immigration rule of law increasing by the day, both in the courts and in the streets, Kennedy's replacement on the Supreme Court must be chosen with the utmost care.

Previously:
06/18/18: America the Horrible?
05/15/18: How Identity Politics Is Harming the Sciences
04/10/18: Who Misbehaves? Claims that school discipline is unfairly meted out ignore actual classroom behavior
04/03/18: Reject the Diversity Mandate
02/20/18: For libs, thousands of mostly black homicide victims are just a 'bump' in the numbers
02/08/18: #MediocrityToo: The coming mania for inclusion will erode standards of merit and excellence
02/06/18: Americans First
01/16/18: Policing Sexual Desire: The #MeToo movement's impossible premise
12/20/17: The media condemns President Trump for 'normalizing hatred' — while it looks the other way on Islamist violence and loathing by black-nationalists
11/14/17: Standing on the Shoulders of Diversocrats
11/06/17: The True Purpose of the University
06/06/17: The Left's Unilateral Suicide Pact
01/09/17: A Window Into a Depraved Culture
12/30/16: The holiday hooliganism traces back to the Obama administration's destructive efforts to undermine school discipline
10/11/16: The Left condemns the GOP candidate even as it celebrates crudity and sexual exhibitionism throughout the culture
09/28/16: Hillary's Debate Lies
07/25/16: The price of a black life: Give Trump his due
07/18/16: The Fire Spreads: Three cops dead in Baton Rouge, and the analogies to the 1960s deepen

Heather Mac Donald is the Thomas W. Smith Fellow at the Manhattan Institute, a contributing editor of City Journal, where this first apeared, and the author of the New York Times bestseller The War on Cops.

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