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In Trump v. Hawaii the court gives bigoted statements a pass

SCOTT PIEPHO
Cases and Controversies

Published: August 10, 2018

Throughout the campaign and administration of President Donald Trump, his opponents have argued that he is different. He is not merely someone with whom we disagree with on policy, but fails to respect the basics of governing. In Trump v. Hawaii, the Supreme Court was faced with that difference, but failed to confront it.

President Donald Trump signed the first ordering banning people from some Muslim nations in late January 2016, seven days after his inauguration. As one of the first official actions taken, it was a political and humanitarian disaster. Among many problems, administration officials disagreed about whether holders of valid green cards were covered by the order, sending hundreds of resident aliens who happened to be out of the country into legal limbo.

Two travel bans were promulgated, legally challenged, then withdrawn and replaced when the administration lost early court decisions. The third attempt is titled “Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the Unites States by Terrorists or Other Public-Safety Threats,” and referred to throughout the case as the Proclamation.

Plaintiffs challenged the Proclamation on statutory grounds and as a violation of the Establishment Clause of the First Amendment. The court upheld it along the usual 5-4 lines.

Chief Justice John Roberts wrote for the court, joined by the rest of the conservative bloc. Justices Anthony Kennedy and Clarence Thomas wrote separate concurrences. The dissents came in two opinions. Justice Stephen Breyer wrote a brief opinion that Justice Elena Kagan joined. Justice Sonya Sotomayor wrote a 27-page dissent joined by Justice Ruth Bader Ginsburg.

Most of Roberts’ opinion interprets the provisions of a statute under which Congress authorized the President to restrict immigration based on national security concerns.

Justice Sotomayor’s dissent, addressing only the Establishment Clause challenge, attracted most of the press attention, in part because she read from the bench when the decision was announced. Pages four through ten of her dissent recount the history of this administration’s attempts to restrict immigration by Muslims. Most of those six pages describe the president’s many statements impugning Muslims, both before and after the election.

Sotomayor’s dissent also notes how the president’s language about the controversy shifted. As earlier iterations of travel restrictions were struck down and withdrawn, he railed against the “watered down” versions, insisting that the country needed a “TRAVEL BAN” even if liberal judges considered that “politically incorrect.”

As podcast host Jon Lovett frequently points out, Trump is unique among presidents in “saying the quiet part out loud.” That is, he gives voice to things that, even if true, the basics of governance dictate remain sub rosa. Or at least sotto voce.

At times this president will change his language if he gets enough push-back. He usually does so by signaling to his core supporters (and anyone else who will pay attention) that, he will substitute certain a word or phrase to let that quiet part be quiet again.

When he said that he wanted his original order back and insisted it be called a “travel ban” damn the political correctness, he offered such a signal that the term encompasses all of the original harsh restrictions placed on Muslim travelers.

Of course, the Supreme Court is built to not pay attention to such verbal legerdemain. But even if the president maintained his rhetoric, it’s not clear that the majority would have done differently.

The majority opinion acknowledges some of the president’s anti-Muslim statements, then observes that the issue “is not whether to denounce the statements [but] the significance of those statements in reviewing a Presidential directive, neutral on its face.”

Based on the broad powers the president holds to respond to national security concerns generally and regarding immigration in particular, the majority holds that it should evaluate the first amendment claim using a rational basis test. The court insists that the Proclamation is facially neutral and justified by stated national security concerns.

Sotomayor counters that the test should be whether a reasonable observer would conclude that the policy is intended to disfavor a particular religion. Based on the president’s statements, she insists that the answer is yes.

Roberts seems to be saying that as long as it is facially neutral, the court will not review it. In so doing, he wrote a perfect opinion for an ordinary conservative administration. He gave only the barest acknowledgement of the president’s willingness to air his ugliest prejudices. Seeing the court ignore clearly a clearly articulated intent to discriminate erodes confidence in its ability to check a president with little respect for institutional niceties.

In a perfect coda for our political moment, the president celebrated the win with a caplocked tweet “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!”


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