The Supreme Court and the ‘Travel Ban’
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I believe the misnamed travel ban is stupid policy. If the president is worried about terrorism, he should ban Saudi citizens. Saudi Arabia provided fifteen of the nineteen 9/11 hijackers, Saudi citizens financed al-Qaeda, the royals contributed some $100 billion to spread intolerant, terrorist-friendly Wahhabism around the world, including in America, and the regime is perhaps the most repressive and aggressive in the Middle East, worse than Iran. Why are we letting its people visit America? Or anyone from Riyadh’s closest ally, the United Arab Emirates?

Because most Saudis and Emiratis seeking visas won’t be terrorists. But the same is true for Iranians, Sudanese, Iraqis, and others on the Trump administration’s various naughty lists (there were at least three variants). It is especially strange to prevent persecuted religious minorities — think Christians, Jews, Yazidis, Baha’is, and others — from seeking refuge in the U.S. The administration even closed down a long-running program that brought Iranian Christians to America. If Tehran is the fount of all evil in the Mideast, indeed the entire universe, why not allow those most at risk in the Islamic Republic to escape?

The policy roll-out was equally bad. So virulent was the threat that people who had been vetted and approved, given up their jobs and homes, and acquired visas and bought tickets, had to be turned around when they landed? While those coming the day before were perfectly safe? If the unfairness didn’t matter, then how about the public image? If you are going to implement a policy that you know will be viciously attacked, you should put it forward as competently and effectively as possible. Multiple rewrites hardly inspired confidence.

Indeed, as written the “travel ban” wouldn’t have prevented any terrorism in the past (remember the fifteen Saudi 9/11 terrorists) and isn’t likely to do so in the future. The policy looks haphazard, costly, unfair, and a major waste of everyone’s time.

But none of this means the president’s policy is not legal and constitutional. Which, of course, is what the courts are supposed to decide. You wouldn’t know that, however, from reading most of the lower court opinions on the president’s executive orders. The basic argument appeared to be that President Trump was thinking evil thoughts when he acted, which was enough. He obviously wanted to ban Muslims. Although he didn’t actually ban Muslims, his policy should be treated as if he did because he really wanted to. Therefore, anything and everything he proposed to do was void on all sorts of grounds, as if any needed to be specified.

The opinions were slightly more substantive and certainly better written than my summary here, but ended up with essentially the same conclusion. The judges explained why they believed the president should reconsider his various executive orders. But they did not offer a convincing case that statutes or the Constitution required him to do so.

There were multiple defects in the plaintiffs’ case, evident to me even though I inclined in their direction. One is the national government’s and president’s broad powers regarding control of the borders. Moreover, Congress gave the president extensive discretionary authority. Two statutes appear to be in possible conflict, but can be reconciled to sustain presidential authority in this case. Obviously, one can argue over the exact parameters of the president’s immigration powers, but John Roberts’ opinion probably got it about right.

Moreover, the president’s anti-Muslim comments don’t turn a non-ban into a ban. The 2015-16 Trump campaign was hardly the first time a candidate made extravagant, even outrageous promises. And the Trump administration was not the first time a president trimmed his ambitions, without necessarily highlighting his retreat. The attempt to overturn otherwise legal actions based on campaign rhetoric proves too much. Would every immigration action he took as president be presumed to advance an unconstitutional end he advocated during the campaign? Every policy with the slightest connection to immigration? How long would this presumption last? For the first year of his term? His entire first term? Both terms if he was reelected? Saying “I want to ban Muslims from America” is not the same as doing so.

Most important, the president did not implement a “Muslim ban.” Even his initial executive order, which only targeted majority Islamic states, was no Muslim ban. There are 50 nations with Muslim majorities. Another couple of countries have very large but not majority Islamic populations. Naming a half dozen Muslim nations, but not the most populous ones, does not bar Muslims from America. Indonesia and Pakistan contain the most Muslims. They are not on the president’s lists. India, though majority Hindu, comes next. Then Bangladesh, probably followed by Nigeria and Turkey (there is some uncertainty as to the exact number of Muslims in each). None are on any of the Trump lists. Then comes Iran, which Trump named. If this is supposed to be an Islamic ban, it seems, well, rather badly constructed.

Finally, the nations selected all had reasons to set them apart other than religion. Countries at war, in virtual collapse, viewed as resolutely hostile, etc. I wasn’t persuaded by the list and could easily come up with a better one. As I indicated earlier, I would put the Kingdom of Saudi Arabia on top. (It is rich and bad enough to earn the top two spots!) Let the pampered royals suffer for all they have put Americans through. But judges don’t have to be persuaded that the list is correct. They only must believe there is a rational basis for the government’s action. In this case there was. As reluctant as I am to admit that anything Washington does can be construed as rational.

Many Americans seem to view the courts as just another legislative branch, to which they should appeal if their elected representatives say no. Indeed, in recent years the Supreme Court has acted like a constitutional convention in permanent session, ever ready to impose the latest ideological and jurisprudential fashions in the name of the Constitution.

In Trump v. Hawaii the justices did their duty. I don’t like the policy result. But if our liberties are to be secure, the law and Constitution must mean something. They must be more than empty vessels into which the next Supreme Court appointee can pour his or her biases. Otherwise our liberties will be constantly at risk, dependent on the rule of men rather than of law.

Doug Bandow is a former Special Assistant to President Ronald Reagan, a graduate of Stanford Law School, and a member of the California and D.C. bars.

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