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The Supreme Court Upholds Presidential Bigotry

The justices signed off on Trump's travel ban at the cost of their own credibility—and perhaps emboldening him further.

Andrew Burton/Getty Images

The Supreme Court gave its approval on Tuesday to the most blatant act of religious discrimination committed by an American president in the modern era, ruling in Trump v. Hawaii that Donald Trump’s travel ban targeting six Muslim-majority countries was a lawful exercise of the executive branch’s immigration powers.

Trump first called for a “total and complete shutdown of Muslims entering the United States” as a candidate in December 2015, later describing it with the euphemism “extreme vetting.” Hostility towards Muslims permeated his presidential bid: He called for surveillance of mosques and frequently told supporters a false story about an American general who dipped bullets in pigs’ blood to stop Islamic terrorism.

In a 5-4 ruling that fell along the court’s conservative-liberal divide, Chief Justice John Roberts wrote that Trump’s extensive record of anti-Muslim animus wasn’t enough to defeat the executive order that gave force to those views. Instead, he anchored the decision in the court’s immigration and national-security precedents, which give extraordinary deference to the judgment of executive branch officials.

“Because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification,” Roberts wrote on behalf of the court. Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch joined the decision in full.

Tuesday’s ruling is a major victory for the Trump administration, which had lost nearly every legal battle they fought over the ban and its earlier versions in the lower federal courts. The Supreme Court’s decision all but guarantees that the ban will remain in force for the duration of Trump’s presidency. Since it was imposed by executive order, future presidents would be free to repeal it on their own authority. Congress could also theoretically rewrite the nation’s immigration laws to nullify the ban, but would have to overcome Trump’s veto.

The ruling could have political ramifications elsewhere. Trump has often complained about the presidency’s structural constraints and recently asked White House advisers why he couldn’t take steps like rewriting the nation’s immigration laws through a single, comprehensive executive order. Now that the justices have sanctioned his most controversial order to date, he may feel emboldened to take aggressive steps in other policy areas.

In legal terms, the decision continues the court’s trend of showing broad deference to executive actions that the White House says are necessary for national security. What sets it apart is Trump himself. Before taking office, he made clear his personal animus towards Muslims and his commitment to policies that punished them. He never repudiated or renounced those views once in office. Quite the opposite, in fact: Trump publicly criticized the Justice Department last summer for “watering down” his original order.

As a result, the most enduring impact of Tuesday’s ruling may be on the Supreme Court itself. Trump v. Hawaii leverages the court’s prestige and legitimacy to allow a president’s openly discriminatory acts to stay in force. It weakens the institution’s credibility as a defender of American constitutional rights. And it calls into question whether the court’s conservative justices support religious freedom for all faiths, or only for those whose beliefs match their ideological stances.

“This ruling will go down in history as one of the Supreme Court’s great failures,” Omar Jadwat, the director of the ACLU’s Immigrants’ Rights Project, said in a statement. “It repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his actions.”

In its current form, the ban restricts most visa travel by foreign nationals from eight countries. Six of those countries are Muslim-majority: Chad, Iran, Libya, Somalia, Syria, and Yemen. It also forbade non-diplomatic travel to the U.S. by North Korean citizens, which is virtually non-existent, as well as some Venezuelan security officials and their families. The Trump administration lifted initial restrictions on foreign nationals from Chad, a key U.S. counter-terrorism ally, in April.

Trump’s travel ban first went into force only a week after he took office last year. The initial version banned U.S. entry for 90 days by virtually all foreign nationals who hailed from seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Trump’s order also suspended the State Department’s Refugee Assistance Program for 120 days, permanently barred Syrian refugees from resettling in the U.S., and carved out an exception for religious minorities.

Chaos reigned in the days that followed. The White House issued the order without warning on a late Friday night, stranding hundreds of travelers mid-journey. After some initial confusion and denials of re-entry, then-Secretary of Homeland Security John Kelly had to clarify that the ban did not apply to green-card holders and dual citizens. Thousands of demonstrators and hundreds of lawyers flocked to major U.S. airports to protest the ban and aid those affected by it. Federal judges in multiple states soon issued temporary orders blocking its implementation.

Three days later, Deputy Attorney General Sally Yates, an Obama administration holdover who stayed on to serve as the acting attorney general during the transition, announced that the Justice Department would not defend the executive order in court. “At present I am not convinced that the defense of the executive order is consistent with [my] responsibilities nor am I convinced that the executive order is lawful,” she said in a statement. Trump quickly fired her and issued a statement that claimed Yates had “betrayed the Department of Justice.”

Federal courts largely vindicated Yates’s stance. Trump lost virtually every legal challenge brought against the order, including key showdowns in the Fourth and Ninth Circuit Courts of Appeal. The White House issued a second version of the ban in March that removed Iraq from the list of affected countries and added new exemptions for certain travelers. It also began a multi-agency review of security measures for screening international travelers. Trump administration officials used that review as the basis for ban’s third and current iteration that went into force in September.

Trump v. Hawaii began as a lawsuit brought by the state of Hawaii and three of Hawaii’s Muslim citizens and permanent residents whose family members are affected by the restrictions. They challenged the ban’s final version on two grounds: that it went beyond the authority to bar foreign nationals that Congress had granted the executive branch, and that it violated the First Amendment’s Establishment Clause by targeting Muslims for discrimination.

The Justice Department countered that the president enjoys broad authority under federal law to bar classes of foreign nationals from U.S. entry, and that the courts have traditionally avoided second-guessing that power’s uses. Government lawyers cited Kleindienst v. Mandel, a 1972 case where the court held that the government need only demonstrate a “facially legitimate and bona fide” reason to bar foreign nationals to survive judicial scrutiny. The department also urged the court not to consider statements made by the president on the campaign trail.

Those arguments satisfied the conservative justices, who sided with the Trump administration on all counts. “The proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” Roberts wrote. “The text [of the proclamation] says nothing about religion.”

The court’s four liberal justices wrote two dissents criticizing the ruling. The strongest criticism came from Justice Sonia Sotomayor, who castigated the majority for disregarding the Constitution’s protections for religious liberty. “In holding that the First Amendment gives way to an executive policy that a reasonable observer would view as motivated by animus against Muslims, the majority opinion upends this Court’s precedent, repeats tragic mistakes of the past, and denies countless individuals the fundamental right of religious liberty,” she wrote.

To emphasize her point, she compared the majority’s decision on Tuesday to the 1944 case Korematsu v. United States. That ruling upheld the internment of more than 100,000 Japanese Americans during World War II on dubious national-security grounds. Korematsu is part of the “anti-canon” of Supreme Court rulings that are now seen as not only legally wrong, but morally indefensible. Judges do not lightly invoke those cases against one another.

“By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another,” Sotomayor wrote.

Roberts fired back that it was “wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.” He also took the opportunity to overturn the Japanese-internment case in the court’s voice. “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,’” he wrote, quoting Justice Robert Jackson’s dissent from the original decision.

“This formal repudiation of a shameful precedent is laudable and long overdue,” Sotomayor responded in her dissent. “But it does not make the majority’s decision here acceptable or right.” A future Supreme Court may yet quote those words to deliver a rebuke of the travel ban and Tuesday’s ruling upholding it. Until then, both are the law of the land.